J.O.V. Acupuncture, P.C. v Amex Assur. Co.

[*1] J.O.V. Acupuncture, P.C. v Amex Assur. Co. 2017 NY Slip Op 50347(U) Decided on March 24, 2017 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 24, 2017
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Schoenfeld, J.P., Shulman, Ling-Cohan, JJ.
570522/16

J.O.V. Acupuncture, P.C., a/a/o Candida Espaillat, Plaintiff-Respondent,

against

Amex Assurance Company, Defendant-Appellant.

Defendant appeals from an order of the Civil Court of the City of New York, New York County (Debra Rose Samuels, J.), entered February 26, 2015, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Debra Rose Samuels, J.), entered February 26, 2015, 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 form at issue (see Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564, 564—565 [2005], lv denied 5 NY3d 713 [2005]; Hospital for Joint Diseases v Nationwide Mut. Ins. Co., 284 AD2d 374 [2001]). The affidavit submitted by defendant to establish proof of mailing of the denial, identifying the affiant as an employee of nonparty Ameriprise Auto & Home [Ameriprise], lacked probative value, since affiant failed to show any relationship between Ameriprise and defendant, or any 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]; Healthy Way Acupuncture, P.C. v One Beacon Ins. Co., 47 Misc 3d 137[A], 2015 NY Slip Op 50537[U] [App Term, 1st Dept 2015]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: March 24, 2017