September 27, 2016

GBI Acupuncture, P.C. v Allstate Ins. Co. (2016 NY Slip Op 51412(U))

Headnote

The court considered a motion seeking summary judgment dismissing the second through tenth causes of action in a case where a provider was seeking to recover assigned first-party no-fault benefits from an insurance company. The main issue decided was whether the insurance company had fully paid the plaintiff for the services at issue in accordance with the workers' compensation fee schedule. The court held that the affidavits submitted by the defendant did not sufficiently set forth a standard office practice or procedure that would ensure the timely mailing of denial of claim forms, and therefore, the defendant did not demonstrate entitlement to summary judgment dismissing the second through tenth causes of action. As a result, the defendant's motion was denied, and the order was reversed.

Reported in New York Official Reports at GBI Acupuncture, P.C. v Allstate Ins. Co. (2016 NY Slip Op 51412(U))

GBI Acupuncture, P.C. v Allstate Ins. Co. (2016 NY Slip Op 51412(U)) [*1]

GBI Acupuncture, P.C. v Allstate Ins. Co.

2016 NY Slip Op 51412(U) [53 Misc 3d 133(A)]

Decided on September 27, 2016

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This opinion is uncorrected and will not be published in the printed Official Reports.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 September 27, 2016

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2014-505 Q C

GBI Acupuncture, P.C., as Assignee of NODAR TOTLADZE, Appellant,
against
Allstate Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Carmen R. Velasquez, J.), entered February 19, 2014. The order, insofar as appealed from, granted the branches of defendant’s motion seeking summary judgment dismissing the second through tenth causes of action.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and the branches of defendant’s motion seeking summary judgment on the second through tenth causes of action are denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from so much of an order of the Civil Court as granted the branches of defendant’s motion seeking summary judgment dismissing the second through tenth causes of action. Defendant’s motion was based on the defense that it had fully paid plaintiff for the services at issue in accordance with the workers’ compensation fee schedule.

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]). Thus, defendant did not demonstrate its entitlement to summary judgment dismissing the second through tenth causes of action.

Accordingly, the order, insofar as appealed from, is reversed, and the branches of defendant’s motion seeking summary judgment on the second through tenth causes of action are denied.

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Decision Date: September 27, 2016