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Neomy Medical, P.C. As Assignee of Michael Walters v. Clarendon National Insurance Company

August 23, 2012

NEOMY MEDICAL, P.C. AS ASSIGNEE OF MICHAEL WALTERS,
RESPONDENT,
v.
CLARENDON NATIONAL INSURANCE COMPANY,
APPELLANT.



Appeal from an order of the Civil Court of the City of New York, Kings County (Peter Paul Sweeney, J.), entered November 5, 2009.

Neomy Med., P.C. v Clarendon Natl. Ins. Co.

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This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 23, 2012

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

The order, insofar as appealed from, denied defendant's cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order of the Civil Court as denied defendant's cross motion for summary judgment dismissing the complaint.

The affidavit submitted by defendant in support of its cross motion failed to establish that defendant had timely denied the claims at issue (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Thus, the Civil Court properly denied defendant's cross motion, as defendant failed to demonstrate that it was not precluded from raising its proffered defense of lack of medical necessity.

Accordingly, the order, insofar as appealed from, is affirmed.

Pesce, P.J., Weston and Rios, JJ., concur. Decision Date: August 23, 2012

20120823

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