SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS Appellate Term, Second Department
November 4, 2011
MAGNEZIT MEDICAL CARE, P.C., MANHATTAN OLD STONE ACUPUNCTURE, P.C., ROMAN CHIROPRACTIC, P.C.
AND EMA ACUPUNCTURE, P.C. AS ASSIGNEES OF DAVID CHIRAZI AND PASCAL RAN, APPELLANTS,
Appeal from an order of the Civil Court of the City of New York, Kings County (Robin D. Garson, J.), entered October 8, 2009.
Magnezit Med. Care, P.C. v MVAIC
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
Decided on November 4, 2011
PRESENT: PESCE, P.J., WESTON and RIOS, JJ
The order denied plaintiffs' motion for summary judgment.
ORDERED that the order is affirmed, without costs.
In this action by providers to recover assigned first-party no-fault benefits, plaintiffs appeal from an order denying their motion for summary judgment.
A no-fault provider establishes its prima facie entitlement to summary judgment by proof of the submission to the defendant of a claim form, proof of the fact and the amount of the loss sustained, and proof either that the defendant had failed to pay or deny the claim within the requisite 30-day period, or that the defendant had issued a timely denial of claim that was conclusory, vague or without merit as a matter of law (see Insurance Law § 5106 [a]; Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 ; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). Here, plaintiffs failed to demonstrate either that defendant had failed to deny the claims or that defendant had issued denial of claim forms which were conclusory, vague or without merit as a matter of law. Accordingly, as plaintiffs did not make a prima facie showing, the order is affirmed.
Pesce, P.J., and Weston, J., concur.
Rios, J., concurs in a separate memorandum.
Rios, J., concurs in the following memorandum:
Plaintiffs failed to establish a prima facie case, as the affidavit of their office supervisor did not unequivocally rule out receipt of a partial payment. In instances where such a payment is made, plaintiffs must establish that defendant had failed to deny the remaining portion of their claims within the requisite 30-day period (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 ; Westchester Med. Ctr. v. Lincoln Gen. Ins. Co., 60 AD3d 1045 ).
Decision Date: November 04, 2011
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