LIDA MEDICAL SUPPLY INC v. GLOBAL LIBERTY INSURANCE (2019)

ORDERED that the judgment is reversed, with $30 costs, so much of the order entered May 10, 2017 as granted plaintiff's motion for summary judgment is vacated and plaintiff's motion for summary judgment is denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. By order entered May 10, 2017, the Civil Court granted plaintiff's motion. This appeal by defendant ensued. A judgment was subsequently entered on December 12, 2017, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

Plaintiff's motion for summary judgment should have been denied as the proof submitted by plaintiff failed to establish that the claim had not been timely denied (see Viviane Etienne Med. Care, P.C. v. Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant had issued a timely denial of claim form that was conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v. Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v. Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op. 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011] ).

Accordingly, the judgment is reversed, so much of the order entered May 10, 2017 as granted plaintiff's motion for summary judgment is vacated and plaintiff's motion for summary judgment is denied.

PESCE, P.J., ALIOTTA and SIEGAL, JJ., concur.