WAVE MEDICAL SERVICES v. GLOBAL LIBERTY INSURANCE (2020)

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), dated December 5, 2018. The order, insofar as appealed from as limited by the brief, granted the branch of plaintiff's motion seeking summary judgment upon the second cause of action.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and the branch of plaintiff's motion seeking summary judgment upon the second cause of action 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 an order of the Civil Court as granted the branch of plaintiff's motion seeking summary judgment upon the second cause of action.

Plaintiff failed to establish its prima facie entitlement to summary judgment upon the second 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] ).

Accordingly, the order, insofar as appealed from, is reversed and the branch of plaintiff's motion seeking summary judgment upon the second cause of action is denied.

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