October 22, 2014

Urban Well Acupuncture, P.C. v American Commerce Ins. Co. (2014 NY Slip Op 51520(U))

Headnote

The court considered the plaintiff's appeal from the Civil Court's order granting the defendant's motion for summary judgment dismissing the complaint in a first-party no-fault benefits action. The main issue decided was whether the defendant had failed to establish that the denial of claim form was actually mailed to the plaintiff, and whether the affidavit submitted by the defendant insurer to establish proof of mailing was sufficient. The court held that the action was not ripe for summary dismissal because the defendant had failed to establish that the denial of claim form was in fact mailed to the plaintiff, and the affidavit submitted by the defendant insurer to establish proof of mailing was insufficient. As a result, the court reversed the order, denied the motion, and reinstated the complaint.

Reported in New York Official Reports at Urban Well Acupuncture, P.C. v American Commerce Ins. Co. (2014 NY Slip Op 51520(U))

Urban Well Acupuncture, P.C. v American Commerce Ins. Co. (2014 NY Slip Op 51520(U)) [*1]

Urban Well Acupuncture, P.C. v American Commerce Ins. Co.

2014 NY Slip Op 51520(U) [45 Misc 3d 128(A)]

Decided on October 22, 2014

Appellate Term, First 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This opinion is uncorrected and will not be published in the printed Official Reports.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 October 22, 2014

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Schoenfeld, J.P., Shulman, Ling-Cohan, JJ.
570167/14

Urban Well Acupuncture, P.C., a/a/o Manuel Lora, Plaintiff-Appellant, –
against
American Commerce Ins. Co. Defendant-Respondent.

Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (James E. d’Auguste, J.), entered February 27, 2013, which granted defendant’s motion for summary judgment dismissing the complaint.

Per Curiam.

Order (James E. d’Auguste, J.), entered February 27, 2013, reversed, with $10 costs, motion denied, and complaint reinstated.

The action, seeking recovery of first-party no-fault benefits, is not ripe for summary dismissal since defendant “failed to . . . establish that the denial of claim form was in fact mailed to the plaintiff” (Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564, 564-565 [2005]; see Mercury Cas. Co. v Encare, Inc., 90 AD3d 475 [2011]). The affidavit submitted by the defendant insurer to establish proof of mailing – identifying the affiant as a “mailroom representative” of a nonparty to this action, State-Wide Insurance Company (“State-Wide”) – neither stated that the affiant actually mailed the claim denial to plaintiff nor, so far as appears, described defendant’s mailing office practice and procedures (see New York and Presbyterian Hospital v Allstate Ins. Co., 29 AD3d 547 [2006]), as opposed to those generally followed by State-Wide. Conspicuously absent from defendant’s moving submission was any allegation or showing that a jural relationship existed between defendant and State-Wide. Given these shortcomings in defendant’s proof, we have no occasion to consider whether defendant’s purported mailing of the claim denial to the individual treating acupuncturist rather than the employing professional corporation was proper (see 11 NYCRR 65-3.8[c])

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concurI concur
Decision Date: October 22, 2014