Healthy Way Acupuncture, P.C. v One Beacon Ins. Co.

[*1] Healthy Way Acupuncture, P.C. v One Beacon Ins. Co. 2015 NY Slip Op 50537(U) Decided on April 16, 2015 Appellate Term, First 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 16, 2015
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Schoenfeld, J.P., Ling-Cohan, J.
570035/15

Healthy Way Acupuncture, P.C., a/a/o Egnys Garcia, Plaintiff-Respondent,

against

One Beacon Ins. Co., Defendant-Appellant.

Defendant appeals from an order of the Civil Court of the City of New York, New York County (Joseph E. Capella, J.), entered March 19, 2014, which denied, in part, its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Joseph E. Capella, J.), entered March 19, 2014, insofar as appealed from, affirmed, with $10 costs.

This action, seeking recovery of first-party no-fault benefits, is not ripe for summary dismissal, since defendant-insurer failed to establish the proper and timely mailing of the denial of claim forms at issue (see Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564, 564—565 [2005]; Hospital for Joint Diseases v Nationwide Mut. Ins. Co., 284 AD2d 374 [2001]). The affidavit submitted by defendant to establish proof of mailing, identifying the affiant as an employee of nonparty Tower Insurance Group ("Tower"), an entity remotely related to defendant, lacked probative value, since it failed to set forth the basis of affiant's personal knowledge of the internal mailing practices and procedures of defendant during the pertinent period (see Gogos v Modell's Sporting Goods, Inc., 87 AD3d 248, 253-254 [2011]), especially given that affiant began his employment with Tower after the denial at issue was allegedly mailed by defendant (see Nocella v Fort Dearborn Life Ins. Co. of NY, 99 AD3d 877, 879 [2012]). "It is the burden of the proponent of an affidavit to demonstrate the basis of the affiant's knowledge . . . and here, defendant failed to meet that burden" (Gogos v Modell's Sporting Goods, Inc., 87 AD3d at 254).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur

Decision Date: April 16, 2015