May 10, 2019

Metro Psychological Servs., P.C. v Allstate Ins. Co. (2019 NY Slip Op 50748(U))

Headnote

The court considered a case in which a provider was seeking to recover assigned first-party no-fault benefits from an insurance company. The main issue decided was whether the insurance company's motion for summary judgment dismissing the complaint should be granted, and whether the provider's cross motion for summary judgment should be denied. The court held that the insurance company's motion for summary judgment dismissing the complaint should be denied, as the company failed to establish that the denial of claim forms had been timely mailed. However, the court also held that the provider's cross motion for summary judgment should be denied, as the provider failed to establish that the claims at issue had not been timely denied, or that the insurance company had issued timely denials of claim that were conclusory, vague or without merit as a matter of law.

Reported in New York Official Reports at Metro Psychological Servs., P.C. v Allstate Ins. Co. (2019 NY Slip Op 50748(U))

Metro Psychological Servs., P.C. v Allstate Ins. Co. (2019 NY Slip Op 50748(U)) [*1]

Metro Psychological Servs., P.C. v Allstate Ins. Co.

2019 NY Slip Op 50748(U) [63 Misc 3d 151(A)]

Decided on May 10, 2019

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This opinion is uncorrected and will not be published in the printed Official Reports.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 10, 2019

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

PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2016-2907 K C

Metro Psychological Services, P.C., as Assignee of Adams Kenneth, Appellant,
against
Allstate Insurance Company, Respondent.

Law Office of Melissa Betancourt, P.C. (Melissa Betancourt of counsel), for appellant. Abrams, Cohen & Associates, P.C. (Frank Piccininni of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Steven Z. Mostofsky, J.), entered August 19, 2016. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

ORDERED that the order is modified by providing that defendant’s 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 granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

Plaintiff correctly contends that defendant’s papers failed to establish, as a matter of law, 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]). As a result, defendant did not demonstrate that it is not precluded from asserting its proffered defenses. Consequently, defendant is not entitled to summary judgment dismissing the complaint.

However, contrary to plaintiff’s further contention, plaintiff 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 denials of claim 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, plaintiff’s cross motion for summary judgment was properly denied.

Accordingly, the order is modified by providing that defendant’s motion for summary [*2]judgment dismissing the complaint is denied.

PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: May 10, 2019