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DAVE NEWMARK, appellant, v. PROGRESSIVE INSURANCE COMPANY, respondent, ET AL., defendant.

DECISION ORDER

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

The plaintiff alleges that he is entitled to summary judgment against the defendant Progressive Insurance Company (hereinafter Progressive), regarding his cause of action to recover no-fault benefit payments for lost wages because Progressive did not pay or deny this claim within the 30-day period set forth in the Insurance Law ( see Insurance Law § 5106; 11 NYCRR 65.15[g][3]). However, the plaintiff did not make a prima facie showing of entitlement to judgment as a matter of law since he failed to demonstrate the absence of any triable issue of fact regarding Progressive's alleged failure to comply with the applicable Insurance Law regulations governing the payment or denial of his no-fault claim ( see Insurance Law § 5106; 11 NYCRR 65.15; Presbyterian Hosp. in City of N.Y. v. Maryland Cas. Co., 90 N.Y.2d 274; New York Presbyt. Hosp. v. American Tr. Ins. Co., 287 A.D.2d 699). Accordingly, the Supreme Court properly denied that branch of the plaintiff's motion which was for summary judgment on his cause of action to recover no-fault benefit payments for lost wages ( see Alvarez v. Prospect Hosp., 68 N.Y.2d 320; Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851).

SANTUCCI, J.P., LUCIANO, SCHMIDT and COZIER, JJ., concur.

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NEWMARK v. PROGRESSIVE INSURANCE COMPANY
(Nov 17, 2003)