May 29, 2014

Clinton Place Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2014 NY Slip Op 50960(U))

Headnote

The court considered the appeal from an order of the Civil Court of the City of New York, Kings County. The order denied the defendant's cross motion for summary judgment dismissing the complaint brought by Clinton Place Medical, P.C. as the assignee of Jorge Done, seeking to recover assigned first-party no-fault benefits from New York Central Mutual Fire Insurance Company. The main issue was whether the denial of claim forms had been timely mailed in accordance with defendant's standard mailing practices and procedures, as the plaintiff's assignor had failed to appear for scheduled independent medical examinations. The court held that the denial of claim forms had been timely mailed in accordance with the defendant's mailing practices, and as the plaintiff had not challenged the finding that the defendant was otherwise entitled to judgment, the order was reversed and the defendant's cross motion for summary judgment dismissing the complaint was granted.

Reported in New York Official Reports at Clinton Place Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2014 NY Slip Op 50960(U))

Clinton Place Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2014 NY Slip Op 50960(U)) [*1]

Clinton Place Med., P.C. v New York Cent. Mut. Fire Ins. Co.

2014 NY Slip Op 50960(U) [44 Misc 3d 126(A)]

Decided on May 29, 2014

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This opinion is uncorrected and will not be published in the printed Official Reports.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 29, 2014

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2012-763 K C

Clinton Place Medical, P.C. as Assignee of JORGE DONE, Respondent,
against
New York Central Mutual Fire Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered February 28, 2012. The order, insofar as appealed from and as limited by the brief, denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant’s cross motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals, as limited by its brief, from so much of an order of the Civil Court as denied defendant’s cross motion for summary judgment dismissing the complaint. Defendant alleged that it had timely denied the claims at issue based upon plaintiff’s assignor’s failure to appear for duly scheduled independent medical examinations. The court stated that the only issue for trial was “the proper mailing of the denials.”

In support of its motion, defendant submitted an affidavit by its no-fault litigation examiner which established that the denial of claim forms had been timely mailed in accordance with defendant’s standard mailing practices and procedures (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). In view of the foregoing, and as plaintiff has not challenged the Civil Court’s finding, in effect, that defendant is otherwise entitled to judgment, the order, insofar as appealed from, is reversed and defendant’s cross motion for summary judgment dismissing the complaint is granted (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).

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

Decision Date: May 29, 2014