June 1, 2018

Acupuncture Healthcare Plaza I, P.C. v Allstate Ins. Co. (2018 NY Slip Op 50835(U))

Headnote

The main issue decided in this case was whether the denial of claim forms at issue had been timely mailed. The court considered the affidavits submitted by the defendant and found that they did not sufficiently set forth a standard office practice or procedure to ensure timely mailing. As a result, the defendant did not demonstrate that it was not precluded from asserting its defense, and therefore was not entitled to summary judgment dismissing the first through fourth causes of action. The holding of the case was that the order of the Civil Court denying the defendant's motion seeking summary judgment was affirmed.

Reported in New York Official Reports at Acupuncture Healthcare Plaza I, P.C. v Allstate Ins. Co. (2018 NY Slip Op 50835(U))

Acupuncture Healthcare Plaza I, P.C. v Allstate Ins. Co. (2018 NY Slip Op 50835(U)) [*1]

Acupuncture Healthcare Plaza I, P.C. v Allstate Ins. Co.

2018 NY Slip Op 50835(U) [59 Misc 3d 150(A)]

Decided on June 1, 2018

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This opinion is uncorrected and will not be published in the printed Official Reports.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 June 1, 2018

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2015-2722 K C

Acupuncture Healthcare Plaza I, P.C., as Assignee of Mozorov, Aleksandr, Respondent,
against
Allstate Insurance Company, Appellant.

Law Offices of Peter C. Merani, P.C. (Eric M. Wahrburg of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered May 29, 2015. The order, insofar as appealed from, denied the branches of defendant’s motion seeking summary judgment dismissing the first through fourth causes of action.

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 appeals from so much of an order of the Civil Court as denied the branches of defendant’s motion seeking summary judgment dismissing the first through fourth causes of action.

The affidavits submitted by defendant did not sufficiently set forth a standard office practice or procedure that would ensure that the denial of claim forms at issue had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). As defendant did not demonstrate that it is not precluded from asserting its proffered defense—that plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations—defendant is not entitled to summary judgment dismissing the first through fourth causes of action.

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

PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: June 01, 2018