Opinion
2018-2041 K C
09-18-2020
JPF MEDICAL SERVICES, P.C., as Assignee of Castillo, Rigoberto, Appellant, v. NATIONWIDE INS., Respondent.
ORDERED that the order is modified by providing that defendant's 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 granted defendant's motion for summary judgment dismissing the complaint and denied plaintiff's cross motion for summary judgment.
To obtain summary judgment on its asserted defense of policy exhaustion, defendant had to prove that it had paid the limits of the policy in accordance with 11 NYCRR 65-3.15 (see Nyack Hosp. v. General Motors Acceptance Corp. , 8 NY3d 294 [2007] ; Alleviation Med. Servs., P.C. v. Allstate Ins. Co. , 55 Misc 3d 44 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017] ). Here, defendant failed to demonstrate, as a matter of law, that it had made any payments under the policy because, as plaintiff argues, defendant's claim specialist did not lay a sufficient foundation for the payment log, upon which defendant relied, to be accepted as proof that the payments listed therein had been made (see CPLR 4518 [a] ; People v. Kennedy , 68 NY2d 569 [1986] ; Charles Deng Acupuncture, P.C. v. 21st Century Ins. Co. , 61 Misc 3d 154[A], 2018 NY Slip Op 51815[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018] ). Although defendant's claim specialist referred to an affidavit annexed as exhibit K, which presumably discussed the payment log, an affidavit was not attached to the papers received by the court. Consequently, 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 motion for summary judgment dismissing the complaint is denied.
WESTON, J.P., ALIOTTA and SIEGAL, JJ., concur.