March 23, 2018

Laga v Allstate Ins. Co. (2018 NY Slip Op 50416(U))

Headnote

The relevant facts considered by the court were that the plaintiff, acting as an assignee, was seeking to recover first-party no-fault benefits from the defendant insurance company. The main issue before the court was whether the defendant was entitled to summary judgment dismissing the complaint. The court ultimately held that the defendant's motion for summary judgment was denied, as their moving papers failed to establish, as a matter of law, that the denial of claim forms had been timely mailed. Consequently, the defendant did not demonstrate that it is not precluded from asserting its proffered defenses, and thus was not entitled to summary judgment. The court reversed the order of the Civil Court and denied the defendant's motion for summary judgment dismissing the complaint.

Reported in New York Official Reports at Laga v Allstate Ins. Co. (2018 NY Slip Op 50416(U))

Laga v Allstate Ins. Co. (2018 NY Slip Op 50416(U)) [*1]

Laga v Allstate Ins. Co.

2018 NY Slip Op 50416(U) [59 Misc 3d 129(A)]

Decided on March 23, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 March 23, 2018

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

PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, BERNICE D. SIEGAL, JJ
2015-1117 K C

Adelaida M. Laga, P.T., as Assignee of Mitchell, Rashida, Appellant,
against
Allstate Insurance Company, Respondent.

The Rybak Firm, PLLC (Damin J. Toell, Karina Barska of counsel), for appellant. Peter C. Merani, P.C. (Josh Youngman, Eric Wahrburg of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Theresa M. Ciccotto, J.), entered January 7, 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, defendant moved for summary judgment dismissing the complaint. Plaintiff opposed the motion. By order entered January 7, 2015, the Civil Court granted defendant’s motion.

Defendant’s moving papers failed to establish, as a matter of law, 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 a result, defendant did not demonstrate that it is not precluded from asserting its proffered defenses. Consequently, defendant is not entitled to summary judgment.

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

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: March 23, 2018