GBI Acupuncture, P.C. v Allstate Ins. Co.

[*1] GBI Acupuncture, P.C. v Allstate Ins. Co. 2016 NY Slip Op 51412(U) Decided on September 27, 2016 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 27, 2016
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2014-505 Q C

GBI Acupuncture, P.C., as Assignee of NODAR TOTLADZE, Appellant,

against

Allstate Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Carmen R. Velasquez, J.), entered February 19, 2014. The order, insofar as appealed from, granted the branches of defendant's motion seeking summary judgment dismissing the second through tenth causes of action.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and the branches of defendant's motion seeking summary judgment on the second through tenth causes of action are denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from so much of an order of the Civil Court as granted the branches of defendant's motion seeking summary judgment dismissing the second through tenth causes of action. Defendant's motion was based on the defense that it had fully paid plaintiff for the services at issue in accordance with the workers' compensation fee schedule.

Plaintiff correctly argues on appeal that the affidavits submitted by defendant did not sufficiently set forth a standard office practice or procedure that would ensure that the denial of claim forms had been timely mailed (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Thus, defendant did not demonstrate its entitlement to summary judgment dismissing the second through tenth causes of action.

Accordingly, the order, insofar as appealed from, is reversed, and the branches of defendant's motion seeking summary judgment on the second through tenth causes of action are denied.

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

Decision Date: September 27, 2016