Gl Acupuncture, P.C. v Allstate Ins. Co. (2018 NY Slip Op 50829(U))

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Peter C. Merani, P.C. (Eric M. Wahrburg of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Terrence C. O’Connor, J.), entered September 21, 2015. The order, insofar as appealed from, denied the branches of plaintiff’s motion seeking summary judgment on the second through fifth causes of action and granted the branches of defendant’s cross motion seeking summary judgment dismissing those causes of action.

ORDERED that the order, insofar as appealed from, is modified by providing that the branches of defendant’s cross motion seeking summary judgment dismissing the second through fifth causes of action are 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 so much of an order of the Civil Court as denied the branches of plaintiff’s motion seeking summary judgment on the second through fifth causes of action, and granted the branches of defendant’s cross motion seeking summary judgment dismissing those causes of action on the ground that the amounts plaintiff sought to recover, for services rendered prior to April 1, 2013, were in excess of the workers’ compensation fee schedule.

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]). As defendant did not demonstrate that it is not precluded from [*2]asserting its proffered defense (cf. 11 NYCRR 65-3.8 [g] [1] [ii]), defendant is not entitled to summary judgment dismissing the second through fifth causes of action.

However, contrary to plaintiff’s contention, the affidavit plaintiff submitted in support of its motion failed to establish that the claims 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 timely denial of claim forms that were 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, the branches of plaintiff’s motion seeking summary judgment on the second through fifth causes of action were properly denied.

Accordingly, the order, insofar as appealed from, is modified by providing that the branches of defendant’s cross motion seeking summary judgment dismissing the second through fifth causes of action are denied.

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