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New York Diagnostic Medical Care, P.C. As Assignee of Curtis Jones and Jeffrey Wiafe v. Geico Casualty Insurance Co

New York Supreme and/or Appellate Courts SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS


December 21, 2012

NEW YORK DIAGNOSTIC MEDICAL CARE, P.C. AS ASSIGNEE OF CURTIS JONES AND JEFFREY WIAFE,
APPELLANT,
v.
GEICO CASUALTY INSURANCE CO.,
RESPONDENT.

Appeal from an order of the District Court of Nassau County, Third District (Fred J. Hirsh, J.), dated February 28, 2011.

New York Diagnostic Med. Care, P.C. v GEICO Cas. 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This opinion is uncorrected and will not be published in the printed Official Reports.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 December 21, 2012

PRESENT: MOLIA, J.P., NICOLAI and IANNACCI, JJ

The order, insofar as appealed from, denied plaintiff's motion for summary judgment.

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, plaintiff appeals from so much of an order of the District Court as denied plaintiff's motion for summary judgment. Plaintiff's moving papers failed to establish a prima facie entitlement to judgment as a matter of law because the affidavit submitted by plaintiff's billing manager was insufficient to establish either that defendant had failed to pay or deny the claims at issue within the requisite 30-day period, or that defendant had issued timely denial of claims that were 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 [2010]; New York Diagnostic Med. Care, P.C. v GEICO Cas. Ins. Co., 35 Misc 3d 131[A], 2012 NY Slip Op 50681[U] [App Term, 9th & 10th Jud Dists 2012]). In view of the foregoing, we reach no other issue.

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

Molia, J.P., Nicolai and Iannacci, JJ., concur. Decision Date: December 21, 2012

20121221

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