| Bay Ls Med. Supplies, Inc. v Allstate Ins. Co. |
| 2015 NY Slip Op 50802(U) [47 Misc 3d 152(A)] |
| Decided on May 19, 2015 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
Appeal from an order of the Civil Court of the City of New York, Queens County (Jodi Orlow, J.), entered September 5, 2012, deemed from a judgment of the same court entered November 1, 2012 (see CPLR 5512 [a]). The judgment, entered pursuant to the September 5, 2012 order granting plaintiff's motion for summary judgment, awarded plaintiff the principal sum of $930.
ORDERED that the judgment is reversed, with $30 costs, the order entered September 5, 2012 granting plaintiff's motion for summary judgment is vacated, and plaintiff's motion is denied.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. By order entered September 5, 2012, the Civil Court granted plaintiff's motion. A judgment awarding plaintiff the principal sum of $930 was entered on November 1, 2012. Defendant's subsequently filed notice of appeal from the September 5, 2012 order is deemed to be a notice of appeal from the judgment entered November 1, 2012 (see CPLR 5512 [a]).
Defendant correctly argues on appeal that plaintiff did not make a prima facie showing of entitlement to summary judgment, as plaintiff failed to establish that the claim at issue had not been timely denied or that defendant had issued a timely denial of claim that was conclusory, vague or without merit as a matter of law (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d 33 [2013]; 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]; see also Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]).
Contrary to defendant's further argument on appeal, reverse summary judgment is not appropriate in this case (see Delta Diagnostic Radiology, P.C. v Progressive Cas. Ins. Co., 20 Misc 3d 144[A], 2008 NY Slip Op 51852[U] [App Term, 2d & 11th Jud Dists 2008]).
Accordingly, the judgment is reversed, the order entered September 5, 2012 granting plaintiff's motion for summary judgment is vacated, and plaintiff's motion is denied.
Pesce, P.J., Aliotta and Solomon, JJ., concur.