NEW YORK SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
April 27, 2012
TOP CHOICE MEDICAL, P.C. AS ASSIGNEE OF EMILIANO VELEZ, APPELLANT, --
GEICO GENERAL INSURANCE COMPANY, RESPONDENT.
Appeal from an order of the Civil Court of the City of New York, Kings County (Wavny Toussaint, J.), entered March 2, 2010.
Top Choice Med., P.C. v Geico Gen. Ins. Co.
Decided on April 27, 2012
Appellate Term, Second Department
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This opinion is uncorrected and will not be published in the printed Official Reports.
PRESENT: PESCE, P.J., RIOS and ALIOTTA, 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 which denied its unopposed 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, plaintiff failed to demonstrate that defendant's denial of claim forms were either untimely or without merit as a matter of law.
Accordingly, the order is affirmed.
Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: April 27, 2012
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