FIRST CARE MEDICAL EQUIPMENT LLC v. KEMPER INSURANCE COMPANY (2020)

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Joy F. Campanelli, J.), entered April 23, 2018. The judgment, insofar as appealed from as limited by the brief, entered pursuant to so much of an order of that court entered February 9, 2018 as granted the branch of plaintiff's motion seeking summary judgment upon the first cause of action, awarded plaintiff the principal sum of $2,523.37 upon the first cause of action.

ORDERED that the judgment, insofar as appealed from, is reversed, with $30 costs, so much of the order entered February 9, 2018 as granted the branch of plaintiff's motion seeking summary judgment upon the first cause of action is vacated, and that branch of plaintiff's motion is denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals, as limited by its brief, from so much of a judgment of the Civil Court entered April 23, 2018 as awarded plaintiff the principal sum of $2,523.37 upon the first cause of action, entered pursuant to so much of an order entered February 9, 2018 as granted the branch of plaintiff's motion seeking summary judgment upon that cause of action.

Plaintiff failed to establish its prima facie entitlement to summary judgment upon the first cause of action, since plaintiff did not establish either that defendant failed to timely deny the claim at issue (see Viviane Etienne Med. Care, P.C. v. Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant 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] ). In any event, in opposition to the branch of plaintiff's motion seeking summary judgment upon the first cause of action, defendant established the existence of a triable issue of fact as to whether the supplies allegedly furnished by plaintiff were medically necessary. We note that the non-substantive technical defect on the denial of claim form regarding the date the requested verification was received did not affect the validity of the denial of claim form (see 11 NYCRR 65-3.8 [h] ). Therefore, the branch of plaintiff's motion seeking summary judgment upon the first cause of action should have been denied.

Accordingly, the judgment, insofar as appealed from, is reversed, so much of the order entered February 9, 2018 as granted the branch of plaintiff's motion seeking summary judgment upon the first cause of action is vacated, and that branch of plaintiff's motion is denied.

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