Acupuncture Healthcare Plaza I, P.C. v Allstate Ins. Co.

[*1] Acupuncture Healthcare Plaza I, P.C. v Allstate Ins. Co. 2018 NY Slip Op 50835(U) Decided on June 1, 2018 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 1, 2018
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2015-2722 K C

Acupuncture Healthcare Plaza I, P.C., as Assignee of Mozorov, Aleksandr, Respondent,

against

Allstate Insurance Company, Appellant.

Law Offices of Peter C. Merani, P.C. (Eric M. Wahrburg of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered May 29, 2015. The order, insofar as appealed from, denied the branches of defendant's motion seeking summary judgment dismissing the first through fourth causes of action.

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, defendant appeals from so much of an order of the Civil Court as denied the branches of defendant's motion seeking summary judgment dismissing the first through fourth causes of action.

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 at issue had been timely mailed (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). As defendant did not demonstrate that it is not precluded from asserting its proffered defense—that plaintiff's assignor had failed to appear for duly scheduled independent medical examinations—defendant is not entitled to summary judgment dismissing the first through fourth causes of action.

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

PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: June 01, 2018