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Jamaica Dedicated Medical Care, P.C. As Assignee of Bobby Johnson, Appellant v. Geico General Ins. Co.

New York Supreme and/or Appellate Courts SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS


May 6, 2013

JAMAICA DEDICATED MEDICAL CARE, P.C. AS ASSIGNEE OF BOBBY JOHNSON, APPELLANT, --
v.
GEICO GENERAL INS. CO., RESPONDENT.

Appeal from an order of the Civil Court of the City of New York, Kings County (Johnny Lee Baynes, J.), entered July 30, 2010, deemed from a judgment of the same court entered November 3, 2010 (see CPLR 5501 [c]). The judgment, entered pursuant to the July 30, 2010 order denying plaintiff's motion for summary judgment and granting defendant's cross motion for summary judgment, dismissed the complaint.

Jamaica Dedicated Med. Care, P.C. v GEICO Gen. 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This opinion is uncorrected and will not be published in the printed Official Reports.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 May 6, 2013

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

ORDERED that the judgment is reversed, with $30 costs, so much of the order entered July 30, 2010 as granted defendant's cross motion for summary judgment dismissing the complaint is vacated, and defendant's cross motion is denied.

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 and granted defendant's cross motion for summary judgment dismissing the complaint. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

As plaintiff argues on appeal, the affidavit of defendant's claims examiner, submitted by defendant in support of its cross motion, failed to address certain of plaintiff's claims and failed to substantiate the fee schedule defense which was the stated basis for one denial. Instead, the affidavit addressed several claims which were not part of plaintiff's complaint. Thus, based on the record before us, we find that defendant failed to establish its entitlement to summary judgment dismissing the complaint.

Accordingly, the judgment is reversed, so much of the order entered July 30, 2010 as granted defendant's cross motion for summary judgment dismissing the complaint is vacated, and defendant's cross motion is denied.

Pesce, P.J., Rios and Solomon, JJ., concur. Decision Date: May 06, 2013

20130506

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