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Bath Medical Supply, Inc. As Assignee of Iona Assevero v. Auto One Insurance Company

December 23, 2011

BATH MEDICAL SUPPLY, INC. AS ASSIGNEE OF IONA ASSEVERO,
APPELLANT,
v.
AUTO ONE INSURANCE COMPANY,
RESPONDENT.



Appeal from an order of the Civil Court of the City of New York, Kings County (Lisa S. Ottley, J.), entered April 30, 2010.

Bath Med. Supply, Inc. v Auto One Ins. Co.

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This opinion is uncorrected and will not be published in the printed Official Reports.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 December 23, 2011

PRESENT: PESCE, P.J., RIOS and STEINHARDT, JJ

The order denied plaintiff's motion for summary judgment.

ORDERED that the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order denying its motion for summary judgment on the ground that defendant's opposition papers sufficiently rebutted plaintiff's prima face showing. Although plaintiff established that defendant did not pay its claims, plaintiff failed to show that the claims were not denied within 30 days or that the basis for the denials was conclusory, vague or had no merit as a matter of law. Consequently, plaintiff did not establish its prima facie entitlement to judgment as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; 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]). As a result, we need not consider the sufficiency of defendant's paper's submitted in opposition to the motion (see Westchester Med. Ctr., 78 AD3d 1168).

Accordingly, the order denying plaintiff's motion for summary judgment is affirmed, albeit on a different ground.

Pesce, P.J., and Steinhardt, J., concur.

Rios, J., dissents in a separate memorandum. SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM 2nd, 11th and 13th JUDICIAL DISTRICTS

PRESENT PESCE, P.J., RIOS and STEINHARDT, JJ.

BATH MEDICAL SUPPLY, INC. as Assignee of IONA ASSEVERO, Appellant, -against- DECIDED AUTO ONE ...


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