Healthy Way Acupuncture, P.C. v Farmington Cas. Co.

[*1] Healthy Way Acupuncture, P.C. v Farmington Cas. Co. 2015 NY Slip Op 51595(U) Decided on October 30, 2015 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 30, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-1337 Q C

Healthy Way Acupuncture, P.C. as Assignee of Richardson Liriano, Appellant,

against

Farmington Casualty Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Barry A. Schwartz, J.), entered May 9, 2013. 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.

The affidavits defendant submitted in support of its motion for summary judgment did not establish that the affiants possessed personal knowledge of defendant's office practices and procedures for the mailing of denial of claim forms or even of any of the facts of this action. Consequently, defendant is not entitled to summary judgment dismissing the complaint on the ground of lack of medical necessity.

Plaintiff's contention that it is entitled to summary judgment lacks merit. Plaintiff's cross motion was supported solely with what purported to be an "affirmation" from its counsel. Even if counsel possessed sufficient personal knowledge of the facts alleged therein, an issue which we do not pass upon, counsel did not sign the "affirmation." In any event, plaintiff's cross motion failed to establish either that defendant had failed to deny the claim within the requisite 30-day period (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant had issued a timely denial of claim that was 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, 11th & 13th Jud Dists 2011]). Consequently, plaintiff's cross motion for summary judgment was properly denied.

Accordingly, the order is modified by providing that defendant's motion for summary judgment dismissing the complaint is denied.

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Decision Date: October 30, 2015