Bay LS Med. Supplies, Inc. v Allstate Ins. Co.

[*1] Bay LS Med. Supplies, Inc. v Allstate Ins. Co. 2015 NY Slip Op 51625(U) Decided on November 9, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 9, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-818 Q C

BAY LS Medical Supplies, Inc. as Assignee of JOSE Z. MEJIA, Respondent,

against

Allstate Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Barry A. Schwartz, J.), entered February 7, 2013. The order, insofar as appealed from, upon denying plaintiff's motion for summary judgment, made, in effect, CPLR 3212 (g) findings in plaintiff's favor, and denied defendant's cross motion for summary judgment dismissing the complaint.

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 moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. Insofar as is relevant to this appeal, the Civil Court, upon denying plaintiff's motion for summary judgment, made, in effect, CPLR 3212 (g) findings in plaintiff's favor, denied defendant's cross motion, and held that the only remaining issue for trial was defendant's proof of mailing of the denial of claim form.

On appeal, defendant fails to articulate a sufficient basis to strike the Civil Court's CPLR 3212 (g) findings in plaintiff's favor (see EMC Health Prods., Inc. v Geico Ins. Co., 43 Misc 3d 139[A], 2014 NY Slip Op 50786[U] [App Term, 2d, 11th & 13th Jud Dists 2014]).

In support of its cross motion, defendant submitted an affidavit by its special investigator which set forth defendant's standard mailing practices and procedures by which he had mailed the denial of claim form at issue to plaintiff. Although the affiant stated that, annexed as an exhibit, was a copy of the certified mail, return receipt card bearing the claim number in question, which reflected that plaintiff had signed for the envelope which, in accordance with the affiant's standard office practice and procedure, contained the denial of claim form in question, the documents attached to defendant's motion pertained to a different assignor. As a result, defendant failed to establish that it had properly mailed its denial of claim form to plaintiff (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) and its cross motion was properly denied.

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

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

Decision Date: November 09, 2015