July 21, 2023

Shafai Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2023 NY Slip Op 50796(U))

Headnote

The court considered the affidavit of defendant's employee as sufficient evidence to establish a presumption that the examination under oath scheduling letters and denial of claim forms as to the claims had been timely mailed. Plaintiff's appeal was limited to the issue of summary judgment dismissing the first and second causes of action, and the court found that plaintiff had not demonstrated any basis to disturb the order granting the branches of defendant's motion seeking summary judgment and denying plaintiff's cross-motion seeking summary judgment. Therefore, the order was affirmed, and the appeal was dismissed. The main issue decided was whether the defendant's evidence was sufficient to establish a presumption of timely mailing of the examination under oath scheduling letters and denial of claim forms, and the court held that it was.

Reported in New York Official Reports at Shafai Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2023 NY Slip Op 50796(U))

Shafai Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2023 NY Slip Op 50796(U)) [*1]

Shafai Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co.

2023 NY Slip Op 50796(U) [79 Misc 3d 132(A)]

Decided on July 21, 2023

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This opinion is uncorrected and will not be published in the printed Official Reports.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 July 21, 2023

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

PRESENT: : MARINA CORA MUNDY, J.P., LISA S. OTTLEY, LOURDES M. VENTURA, JJ
2023-62 K C

Shafai Acupuncture, P.C., as Assignee of Ali, Sean, Appellant,
against
State Farm Mutual Automobile Ins. Co., Respondent.

The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for appellant. Rivkin Radler, LLP (Stuart M. Bodoff of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (D. Bernadette Neckles, J.), entered July 29, 2022. The order, insofar as appealed from as limited by the brief, granted the branches of defendant’s motion seeking summary judgment dismissing the first and second causes of action of the complaint and denied the branches of plaintiff’s cross-motion seeking summary judgment upon those causes of action.

ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals, as limited by its brief, from so much of an order of the Civil Court as granted the branches of defendant’s motion seeking summary judgment dismissing the first and second causes of action and denied the branches of plaintiff’s cross-motion seeking summary judgment upon those causes of action.

Contrary to plaintiff’s sole contention with respect to the branches of defendant’s motion seeking summary judgment upon the first and second causes of action, the affidavit of defendant’s employee was sufficient to give rise to a presumption that the examination under oath scheduling letters and denial of claim forms as to the claims underlying those causes of action had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Horizon P.T. Care, P.C. v State Farm Mut. Auto. Ins. Co., 78 Misc 3d 133[A], 2023 NY Slip Op 50442[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2023]). [*2]Thus, plaintiff has not demonstrated any basis to disturb so much of the order as granted the branches of defendant’s motion seeking summary judgment dismissing the first and second causes of action, and denied the branches of plaintiff’s cross-motion seeking summary judgment upon those causes of action.

Accordingly, the order, insofar as appealed from, is affirmed.

MUNDY, J.P., OTTLEY and VENTURA, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: July 21, 2023