September 19, 2016

Compas Med., P.C. v Allstate Ins. Co. (2016 NY Slip Op 51356(U))

Headnote

The main issue in this case was whether defendant's cross motion for summary judgment dismissing the complaint should be granted due to plaintiff's assignor's failure to appear for duly scheduled examinations under oath. The court considered the affidavits submitted by both parties and found that defendant did not sufficiently demonstrate its entitlement to summary judgment dismissing the complaint. However, the court also found that plaintiff's motion for summary judgment was properly denied as the affidavit plaintiff submitted failed to establish that the claim at issue had not been timely denied, or that defendant had issued a timely denial of claim that was conclusory, vague or without merit as a matter of law. The holding of the case was that defendant's cross motion for summary judgment dismissing the complaint was denied, and the order was affirmed without costs.

Reported in New York Official Reports at Compas Med., P.C. v Allstate Ins. Co. (2016 NY Slip Op 51356(U))

Compas Med., P.C. v Allstate Ins. Co. (2016 NY Slip Op 51356(U)) [*1]

Compas Med., P.C. v Allstate Ins. Co.

2016 NY Slip Op 51356(U) [53 Misc 3d 129(A)]

Decided on September 19, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 19, 2016

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-2557 Q C

Compas Medical, P.C., as Assignee of NICOLE EDINBORO, Appellant,
against
Allstate Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Jodi Orlow, J.), entered June 18, 2013. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint. Defendant’s cross motion was based on plaintiff’s assignor’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 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 complaint.

However, contrary to plaintiff’s contention, the affidavit plaintiff submitted in support of its motion failed to establish that the claim at issue had not been timely denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant had issued a timely denial of claim that was conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]). As a result, plaintiff’s motion for summary judgment was properly denied.

Accordingly, the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied.

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

Decision Date: September 19, 2016