December 19, 2017

Big Apple Ortho Prods., Inc. v Allstate Ins. Co. (2017 NY Slip Op 51791(U))

Headnote

The court considered the fact that the plaintiff, Big Apple Ortho Products, Inc., was seeking to recover assigned first-party no-fault benefits, and that the defendant, Allstate Insurance Company, had filed a motion for summary judgment to dismiss the complaint based on the plaintiff's failure to appear for scheduled examinations under oath. The main issue decided in the case was whether the defendant had demonstrated its entitlement to summary judgment by showing that the denial of claim form had been timely mailed, and whether the affidavits submitted by the defendant sufficiently set forth a standard office practice or procedure to ensure this. The holding of the case was that the defendant did not demonstrate its entitlement to summary judgment dismissing the complaint, and as a result, the order granting the defendant's motion for summary judgment was reversed and the motion was denied.

Reported in New York Official Reports at Big Apple Ortho Prods., Inc. v Allstate Ins. Co. (2017 NY Slip Op 51791(U))

Big Apple Ortho Prods., Inc. v Allstate Ins. Co. (2017 NY Slip Op 51791(U)) [*1]

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

2017 NY Slip Op 51791(U) [58 Misc 3d 134(A)]

Decided on December 19, 2017

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This opinion is uncorrected and will not be published in the printed Official Reports.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 December 19, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2015-228 K C

Big Apple Ortho Products, Inc., as Assignee of Ianotti, Ann-Marie, Appellant,
against
Allstate Insurance Company, Respondent.

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Stern & Montana, LLP (Richard Montana, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Pamela L. Fisher, J.), entered November 21, 2014. 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 based upon plaintiff’s failure 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 form 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 complaint.

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

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 19, 2017