Opinion
No. 2023-655 K C
02-16-2024
JSJ Anesthesia Pain Management, PLLC, as Assignee of Gardner-Bowlyn, Janet, Appellant, v. Nationwide Insurance Company, Respondent.
The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Law Offices of Brian Rayhill (Ivy Cherian and Lawrence Wolkow of counsel), for respondent.
Unpublished Opinion
The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant.
Law Offices of Brian Rayhill (Ivy Cherian and Lawrence Wolkow of counsel), for respondent.
PRESENT:: CHEREÉ A. BUGGS, J.P., LISA S. OTTLEY, PHILLIP HOM, JJ
Appeal from an order of the Civil Court of the City of New York, Kings County (Keisha M. Alleyne, J.), dated April 18, 2023. The order granted defendant's motion for summary judgment dismissing the complaint and denied plaintiff's cross-motion for summary judgment.
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 granting defendant's motion for summary judgment dismissing the complaint on the ground that the policy limits had been exhausted, and denying 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 N.Y.3d 294 [2007]; Alleviation Med. Servs., P.C. v Allstate Ins. Co., 191 A.D.3d 934 [2021]). 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 N.Y.2d 569 [1986]; JPC Med., P.C. v State Farm Mut. Auto. Ins. Co., 75 Misc.3d 136 [A], 2022 NY Slip Op 50562[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]; JPF Med. Servs., P.C. v Nationwide Ins., 69 Misc.3d 127 [A], 2020 NY Slip Op 51122[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]; Charles Deng Acupuncture, P.C. v 21st Century Ins. Co., 61 Misc.3d 154 [A], 2018 NY Slip Op 51815[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]). Consequently, defendant failed to make a prima facie showing of its entitlement to summary judgment dismissing the complaint.
Plaintiff's cross-motion for summary judgment was properly denied, as plaintiff failed to establish that the claim at issue had not been timely denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 N.Y.3d 498 [2015]), or that defendant had 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 A.D.3d 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.
BUGGS, J.P., OTTLEY and HOM, JJ., concur.