May 25, 2018

Big Apple Ortho Prods., Inc. v Allstate Ins. Co. (2018 NY Slip Op 50775(U))

Headnote

The relevant facts in the case were that Big Apple Ortho Products, Inc. brought an action to recover assigned first-party no-fault benefits. Allstate Insurance Company moved for summary judgment, claiming that Big Apple Ortho had failed to appear for scheduled examinations under oath. The main issue decided by the court was whether defendant Allstate had sufficiently demonstrated that it was not precluded from asserting its defense. The holding of the court was that Allstate did not demonstrate that it was not precluded from asserting its proffered defense, and therefore was not entitled to summary judgment dismissing the complaint. The court reversed the order granting Allstate's motion for summary judgment, with the costs of $30, and denied the motion for summary judgment dismissing the complaint.

Reported in New York Official Reports at Big Apple Ortho Prods., Inc. v Allstate Ins. Co. (2018 NY Slip Op 50775(U))

Big Apple Ortho Prods., Inc. v Allstate Ins. Co. (2018 NY Slip Op 50775(U)) [*1]

Big Apple Ortho Prods., Inc. v Allstate Ins. Co.

2018 NY Slip Op 50775(U) [59 Misc 3d 147(A)]

Decided on May 25, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 May 25, 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
2016-157 K C

Big Apple Ortho Products, Inc., as Assignee of Robinson, Eric, Appellant,
against
Allstate Insurance Company, Respondent.

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Morrison Mahoney, LLP (Richard Montana of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered October 14, 2015. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath.

Plaintiff correctly argues on appeal that 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 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, it is not entitled to summary judgment dismissing the complaint.

Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is denied.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: May 25, 2018