Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered March 9, 2011.
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This opinion is uncorrected and will not be published in the printed Official Reports.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 February 11, 2013
PRESENT: PESCE, P.J., RIOS and SOLOMON, JJ
The order denied plaintiff's motion for summary judgment.
ORDERED that the order is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which denied plaintiff's 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 that the defendant either failed to pay or deny the claim within the requisite 30-day period, or 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]). As plaintiff's affidavit in support of its motion failed to demonstrate that defendant's denial of claim forms were either untimely or without merit as a matter of law, plaintiff failed to establish its prima facie entitlement to summary judgment.
Accordingly, the order is affirmed.
Pesce, P.J., Rios and Solomon, JJ., concur. Decision Date: February 11, 2013
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