December 19, 2017

Compas Med., P.C. v Allstate Ins. Co. (2017 NY Slip Op 51842(U))

Headnote

The relevant facts considered in this case were that Compas Medical, P.C. filed a lawsuit to recover first-party no-fault benefits and the defendant, Allstate Insurance Company, moved for summary judgment to dismiss the complaint based on the plaintiff's assignor's failure to attend scheduled examinations under oath. The main issue decided was whether the defendant's affidavit sufficiently demonstrated that their denial of claim forms had been timely mailed. The holding of the case was that the order granting the defendant's motion for summary judgment was reversed, and the defendant's motion for summary judgment was denied, as the defendant did not demonstrate its entitlement to summary judgment.

Reported in New York Official Reports at Compas Med., P.C. v Allstate Ins. Co. (2017 NY Slip Op 51842(U))

Compas Med., P.C. v Allstate Ins. Co. (2017 NY Slip Op 51842(U)) [*1]

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

2017 NY Slip Op 51842(U) [58 Misc 3d 138(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This opinion is uncorrected and will not be published in the printed Official Reports.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
2015-425 K C

Compas Medical, P.C., as Assignee of Joseph, Raoul, Appellant,
against
Allstate Insurance Company, Respondent.

The Rybak Firm, PLLC (Joseph D. DePalma, Esq.), for appellant. Law Offices of James F. Sullivan (Gia Tuttolomondo, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Ingrid Joseph, J.), entered December 3, 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 on the ground that plaintiff’s assignor had failed to appear at duly scheduled examinations under oath.

Plaintiff correctly argues on appeal that the affidavit submitted by defendant did not sufficiently set forth a standard office practice or procedure that would ensure that defendant’s 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.

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

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

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