Opinion
2016-472 Q C
12-07-2018
CHARLES DENG ACUPUNCTURE, P.C., as Assignee of Destine, Wooselie, Appellant, v. 21ST CENTURY INSURANCE COMPANY, Respondent.
The Rybak Firm, PLLC (Damin J. Toell and Karina Barska of counsel), for appellant. Law Offices of Bryan M. Rothenberg (Sharon A. Brennan and Marisa Villafana of counsel), for respondent.
The Rybak Firm, PLLC (Damin J. Toell and Karina Barska of counsel), for appellant.
Law Offices of Bryan M. Rothenberg (Sharon A. Brennan and Marisa Villafana of counsel), for respondent.
PRESENT: : MICHELLE WESTON, J.P., MICHAEL L. PESCE, BERNICE D. SIEGAL, JJ
ORDERED that the order is modified by providing that defendant's cross motion for summary judgment dismissing the complaint is denied; as so modified, the order is affirmed, without costs.
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.
Contrary to the determination of the Civil Court, defendant failed to establish with admissible evidence that Florida law applies to the case at bar and, thus, that the amount available for no-fault reimbursement under the present policy was limited to $10,000. Moreover, even if defendant had established that Florida law applies here, defendant relied upon an annexed payment log to demonstrate that policy limits in the amount of $10,000 had been exhausted; however, the affidavits submitted by defendant failed to establish that the payment log constituted evidence in admissible form (see CPLR 4518 [a]; People v. Kennedy , 68 NY2d 569, 579-580 [1986] ; Palisades Collection, LLC v. Kedik , 67 AD3d 1329, 1330-1331 [2009] ; Speirs v. Not Fade Away Tie Dye Co. , 236 AD2d 531 [1997] ). Consequently, as defendant failed to support its defense that it had paid the full monetary limits of the policy at issue, defendant failed to make a prima facie showing of its entitlement to summary judgment dismissing the complaint.
Plaintiff's motion for summary judgment was properly denied, as the proof submitted by plaintiff failed to establish that the claims 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 timely denial of claim forms that were 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 is modified by providing that defendant's cross motion for summary judgment dismissing the complaint is denied.
WESTON, J.P., PESCE and SIEGAL, JJ., concur.