[*1]
Quality Psychological Servs., P.C. v Avis Rent-A-Car Sys., LLC
2015 NY Slip Op 50378(U) [47 Misc 3d 129(A)]
Decided on March 12, 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This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on March 12, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2012-2143 K C

Quality Psychological Services, P.C. as Assignee of DEBBIE VALDEZ, Appellant,

against

Avis Rent-A-Car Systems, LLC, Respondent.


Appeal from an order of the Civil Court of the City of New York, Kings County (Reginald A. Boddie, J.), entered August 8, 2012. The order, insofar as appealed from, denied plaintiff's cross motion for summary judgment.

ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint and plaintiff cross-moved for summary judgment. The Civil Court denied defendant's motion, finding that defendant's denial of claim form was defective and that it was not attached in full to defendant's motion papers. The court also denied plaintiff's cross motion, finding that plaintiff had failed to attach the denial of claim form to its motion papers and, therefore, had failed to establish that the denial was "vague, conclusory or factually insufficient." Plaintiff appeals from so much of the order as denied its cross motion for summary judgment.

A no-fault plaintiff is only entitled to summary judgment where it demonstrates that defendant failed to timely pay or deny a claim (see Insurance Law § 5106 [a]; Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d 33 [2013]), or that the denial is conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]). Here, plaintiff has not alleged that it did not receive a denial of claim from defendant. Moreover, the denial of claim form attached to defendant's motion papers, which plaintiff argues is fatally defective, states that the claim was being denied because plaintiff's assignor had failed to appear for two properly scheduled examinations under oath. Contrary to plaintiff's argument, the failure to set forth the dates of the scheduled examinations in the denial of claim form did not render the denial conclusory, vague, or without merit as a matter of law (cf. A.B. Med. Servs., PLLC v Liberty Mut. Ins. Co., 39 AD3d 779 [2007]). Plaintiff's argument that it was entitled to summary judgment because defendant


attached an incomplete copy of the denial to its motion papers lacks merit. Consequently, plaintiff's cross motion for summary judgment was properly denied.

Accordingly, the order, insofar as appealed from, is affirmed.

Pesce, P.J., Aliotta and Solomon, JJ., concur.


Decision Date: March 12, 2015