September 21, 2016

Cpm Surgical Supply, Inc. v Allstate Prop. & Cas. Ins. Co. (2016 NY Slip Op 51377(U))

Headnote

The relevant facts considered by the court were that CPM Surgical Supply, Inc. was appealing a decision to grant Allstate Property & Casualty Insurance Company's motion for summary judgment dismissing their complaint. The main issue decided was whether defendant's motion for summary judgment was justified based on plaintiff's failure to appear for scheduled examinations under oath, and whether defendant demonstrated its entitlement to summary judgment. The holding of the case was that the order was reversed and defendant's motion for summary judgment dismissing the complaint was denied, as the affidavits submitted by defendant did not sufficiently establish a standard office practice or procedure ensuring timely mailing of the denial of claim form. The court found that the defendant did not demonstrate its entitlement to summary judgment.

Reported in New York Official Reports at Cpm Surgical Supply, Inc. v Allstate Prop. & Cas. Ins. Co. (2016 NY Slip Op 51377(U))

Cpm Surgical Supply, Inc. v Allstate Prop. & Cas. Ins. Co. (2016 NY Slip Op 51377(U)) [*1]

CPM Surgical Supply, Inc. v Allstate Prop. & Cas. Ins. Co.

2016 NY Slip Op 51377(U) [53 Misc 3d 131(A)]

Decided on September 21, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 21, 2016

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2014-1261 K C

CPM Surgical Supply, Inc., as Assignee of SHOMBE HEMPFIELD, Appellant,
against
Allstate Property & Casualty Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered May 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. Defendant’s motion was based on 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.

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.

Decision Date: September 21, 2016