PLAINTIFF’S AFFIDAVIT DEFECTIVE

PLAINTIFF’S AFFIDAVIT DEFECTIVE

Great Health Care Chiropractic, P.C. v. Unitrin Direct Insurance Company, Slip Copy, 2016 WL 1188554 (Table), 2016 N.Y. Slip Op. 50373(U).  Another defective affidavit case.

Defendant moved for summary judgment dismissing the complaint and plaintiff cross-moved for summary judgment. Civil Court granted defendant’s motion and denied plaintiff’s cross motion.

As defendant’s moving papers did not establish that defendant had timely denied the claim at issue, defendant failed to establish its entitlement to judgment as a matter of law dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2009]). Consequently, defendant’s motion should have been denied.

However, contrary to plaintiff’s contention, plaintiff failed to demonstrate its prima facie entitlement to summary judgment, as the affidavit plaintiff submitted in support of its motion 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 NY3d 498 [2015]), or that defendant had issued a timely denial of claim that was 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]).

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