Reported in New York Official Reports at Pavlova v Travelers Ins. Co. (2018 NY Slip Op 50847(U))
| Pavlova v Travelers Ins. Co. |
| 2018 NY Slip Op 50847(U) [59 Misc 3d 151(A)] |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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
2016-120 K C
against
Travelers Insurance Company, Respondent.
The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Law Office of Aloy O. Ibuzor (Tricia Prettypaul of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Harriet L. Thompson, J.), entered November 20, 2015. 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 on the ground that the action was premature because plaintiff had failed to provide requested verification, and denied plaintiff’s cross motion for summary judgment.
Contrary to plaintiff’s contentions, defendant’s proof was sufficient to demonstrate prima facie that it had properly mailed the verification requests at issue (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) and that it had not received the requested verification, and, thus, that the action is premature (see Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]). However, as plaintiff further argues, the affidavit submitted by plaintiff in support of its cross motion was sufficient to give rise to a presumption that the requested verification had been mailed to, and received by, defendant (see [*2]St. Vincent’s Hosp. of Richmond, 50 AD3d 1123). In light of the foregoing, there is a triable issue of fact as to whether the action is premature (see Compas Med., P.C. v Praetorian Ins. Co., 49 Misc 3d 152[A], 2015 NY Slip Op 51776[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).
Accordingly, the order is modified by providing that defendant’s motion for summary judgment dismissing the complaint is denied.
PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: June 01, 2018
Reported in New York Official Reports at Maiga Prods. Corp. v 21st Century Ins. Co. (2018 NY Slip Op 50845(U))
| Maiga Prods. Corp. v 21st Century Ins. Co. |
| 2018 NY Slip Op 50845(U) [59 Misc 3d 151(A)] |
| 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
2016-95 K C
against
21st Century Insurance Company, Respondent.
The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Law Offices of Buratti, Rothenberg & Burns (Sharon A. Brennan of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Richard Montelione, J.), entered October 8, 2015. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with $25 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 denied plaintiff’s motion for summary judgment, and granted defendant’s cross motion for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs).
Contrary to plaintiff’s contentions, the proof submitted by defendant in support of its cross motion was sufficient to give rise to a presumption that the EUO scheduling letters and the denial of claim forms had been properly mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]).
Accordingly, the order is affirmed.
PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: June 01, 2018
Reported in New York Official Reports at Pavlova v Country Wide Ins. Co. (2018 NY Slip Op 50843(U))
| Pavlova v Country Wide Ins. Co. |
| 2018 NY Slip Op 50843(U) [59 Misc 3d 151(A)] |
| 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
2015-2980 Q C
against
Country Wide Insurance Company, Respondent.
The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Jaffe & Koumourdas, LLP (Jean H. Kang of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Terrence C. O’Connor, J.), entered November 24, 2015. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with $25 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 denied plaintiff’s motion for summary judgment, and granted defendant’s cross motion for summary judgment dismissing the complaint on the ground that defendant had not issued an insurance policy covering the subject loss.
Contrary to plaintiff’s argument as to defendant’s cross motion, the proof submitted by defendant was sufficient to demonstrate that it had not issued a policy covering the subject loss (see e.g. New Way Med. Supply Corp. v Dollar Rent A Car, 49 Misc 3d 154[A], 2015 NY Slip Op 51794[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 44 Misc 3d 136[A], 2014 NY Slip Op 51240[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]).
Accordingly, the order is affirmed.
PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: June 01, 2018
Reported in New York Official Reports at Gl Acupuncture, P.C. v Allstate Ins. Co. (2018 NY Slip Op 50842(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
Allstate Insurance Company, Respondent.
The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Robert P. Tusa, for respondent (no brief filed).
Appeal from an order of the Civil Court of the City of New York, Queens County (Terrence C. O’Conner, J.), entered September 28, 2015. The order, insofar as appealed from, denied the branches of plaintiff’s motion seeking summary judgment on the first, second and fourth through sixth causes of action and so much of the third cause of action as sought to recover the sum of $295.68, and granted the branches of defendant’s cross motion seeking summary judgment dismissing the fourth through sixth causes of action and so much of the third cause of action as sought to recover the sum of $295.68.
ORDERED that the order, insofar as appealed from, is modified by providing that the branches of defendant’s cross motion seeking summary judgment dismissing the fourth through sixth causes of action and so much of the third cause of action as sought to recover the sum of $295.68 are denied; as so modified, the order, insofar as appealed from, is affirmed, without costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from so much of an order as denied the branches of plaintiff’s motion seeking summary judgment on the first, second and fourth through sixth causes of action and so much of the third cause of action as sought to recover $295.68, and granted so much of defendant’s cross motion as sought summary judgment dismissing the fourth through sixth causes of action and so much of the third cause of action as sought to recover the sum of $295.68.
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]). As defendant did not demonstrate that it is not precluded from asserting its proffered defense (cf. 11 NYCRR 65-3.8 [g] [1] [ii])—that the amounts plaintiff sought to recover for services that had been rendered prior to April 1, 2013 were in excess of the workers’ compensation fee schedule—defendant is not entitled to summary judgment dismissing the fourth through sixth causes of action and so much of the third cause of action as sought to recover the sum of $295.68.
However, contrary to plaintiff’s contention, the affidavit plaintiff submitted in support of its motion failed to establish that the claims at issue had not been timely denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant had issued timely denial of claim forms that were 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 Dept, 2d, 11th & 13th Jud Dists 2011]). As a result, the branches of plaintiff’s motion seeking summary judgment on the first, second and fourth through sixth causes of action and so much of the third cause of action as sought to recover the sum of $295.68 were properly denied.
Accordingly, the order, insofar as appealed from, is modified by providing that the branches of defendant’s cross motion seeking summary judgment dismissing the fourth through sixth causes of action and so much of the third cause of action as sought to recover the sum of $295.68 are denied.
PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: June 01, 2018
Reported in New York Official Reports at Gl Acupuncture, P.C. v Allstate Ins. Co. (2018 NY Slip Op 50841(U))
| GL Acupuncture, P.C. v Allstate Ins. Co. |
| 2018 NY Slip Op 50841(U) [59 Misc 3d 151(A)] |
| 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
2015-2949 Q C
against
Allstate Insurance Company, Respondent.
The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Robert P. Tusa, for respondent (no brief filed).
Appeal from an order of the Civil Court of the City of New York, Queens County (Terrence C. O’Conner, J.), entered September 23, 2015. The order, insofar as appealed from as limited by the brief, granted defendant’s cross motion for summary judgment dismissing the complaint.
ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant’s cross motion for summary judgment dismissing the complaint is denied.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals, as limited by the brief, from so much of an order of the Civil Court as granted defendant’s cross motion for summary judgment dismissing the complaint on the ground that the amounts plaintiff sought to recover, for services rendered prior to April 1, 2013, were in excess of 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 form 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 (cf. 11 NYCRR 65-3.8 [g] [1] [ii]), defendant is not entitled to [*2]summary judgment dismissing the complaint.
Accordingly, the order, insofar as appealed from, is reversed and defendant’s cross motion for summary judgment dismissing the complaint is denied.
PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: June 01, 2018
Reported in New York Official Reports at Mostun v Countrywide Ins. (2018 NY Slip Op 50840(U))
| Mostun v Countrywide Ins. |
| 2018 NY Slip Op 50840(U) [59 Misc 3d 151(A)] |
| 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
2015-2908 Q C
against
Countrywide Insurance, Respondent.
Korsunskiy Legal Group, P.C. (Henry Guindi of counsel), for appellant. Jaffe & Koumourdas, LLP (Jean H. Kang of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Maureen A. Healy, J.), entered May 22, 2015. The order granted defendant’s posttrial motion to toll the accrual of no-fault statutory prejudgment interest based upon plaintiff’s delay in the prosecution of the action and held that interest shall accrue from December 18, 2014.
ORDERED that the order is modified by providing that no-fault statutory prejudgment interest shall accrue from January 23, 2014; as so modified, the order is affirmed, without costs.
For the reasons stated in Vitality Chiropractic, P.C., as Assignee of Angel Velazquez v Countrywide Ins. (___ Misc 3d ___, 2018 NY Slip Op _____ [appeal No. 2015-2906 Q C], decided herewith), the order is modified by providing that no-fault statutory prejudgment interest shall accrue from January 23, 2014.
PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: June 01, 2018
Reported in New York Official Reports at Mostun v Countrywide Ins. (2018 NY Slip Op 50839(U))
| Mostun v Countrywide Ins. |
| 2018 NY Slip Op 50839(U) [59 Misc 3d 151(A)] |
| 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
2015-2907 Q C
against
Countrywide Insurance, Respondent.
Korsunskiy Legal Group, P.C. (Henry Guindi of counsel), for appellant. Jaffe & Koumourdas, LLP (Jean H. Kang of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Maureen A. Healy, J.), entered May 28, 2015. The order granted defendant’s posttrial motion to toll the accrual of no-fault statutory prejudgment interest based upon plaintiff’s delay in the prosecution of the action and held that interest shall accrue from December 18, 2014.
ORDERED that the order is modified by providing that no-fault statutory prejudgment interest shall accrue from January 23, 2014; as so modified, the order is affirmed, without costs.
For the reasons stated in Vitality Chiropractic, P.C., as Assignee of Angel Velazquez v Countrywide Ins. (___ Misc 3d ___, 2018 NY Slip Op _____ [appeal No. 2015-2906 Q C], decided herewith), the order is modified by providing that no-fault statutory prejudgment interest shall accrue from January 23, 2014.
PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: June 01, 2018
Reported in New York Official Reports at Vitality Chiropractic, P.C. v Countrywide Ins. (2018 NY Slip Op 50838(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
Countrywide Insurance, Respondent.
Korsunskiy Legal Group, P.C. (Henry Guindi of counsel), for appellant. Jaffe & Koumourdas, LLP (Jean H. Kang of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Maureen A. Healy, J.), entered May 22, 2015. The order granted defendant’s posttrial motion to toll the accrual of no-fault statutory prejudgment interest based upon plaintiff’s delay in the prosecution of the action and held that interest shall accrue from December 18, 2014.
ORDERED that the order is modified by providing that no-fault statutory prejudgment interest shall accrue from January 23, 2014; 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 posttrial motion to toll the accrual of no-fault statutory prejudgment interest based upon plaintiff’s delay in the prosecution of the action and held that interest shall accrue from December 18, 2014, the date the notice of trial was filed.
The Insurance Department Regulations provide that, where a provider does not commence a no-fault action within 30 days of receipt of the insurer’s denial of claim form, statutory prejudgment interest (see Insurance Law § 5106 [a]) does not begin to accumulate until an action is commenced (11 NYCRR 65—3.9 [c]). If an action has been commenced, statutory interest accumulates “unless the applicant unreasonably delays the . . . court proceeding” (11 NYCRR 65—3.9 [d]). Plaintiff took no meaningful action to prosecute the case, which was commenced in 2002, until January 23, 2014 when it served a motion to compel discovery. Thus, [*2]the Civil Court properly determined that plaintiff should not be rewarded for its years of inaction by receiving a windfall of interest (see Kew Gardens Med & Rehab, P.C. v Country-Wide Ins. Co., 52 Misc 3d 143[A], 2016 NY Slip Op 51240[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]; Aminov v Country Wide Ins. Co., 43 Misc 3d 87 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]). However, the Civil Court should have determined that statutory interest began to accrue when the motion to compel discovery was served, rather than when the notice of trial was filed, almost a year later.
Accordingly, the order is modified by providing that no-fault statutory prejudgment interest shall accrue from January 23, 2014.
PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: June 01, 2018
Reported in New York Official Reports at Gentlecare Ambulatory Anesthesia Servs. v GEICO Ins. Co. (2018 NY Slip Op 50837(U))
| Gentlecare Ambulatory Anesthesia Servs. v GEICO Ins. Co. |
| 2018 NY Slip Op 50837(U) [59 Misc 3d 150(A)] |
| 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
2015-2804 Q C
against
GEICO Ins. Co., Respondent.
The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Rivkin Radler, LLP (Cheryl F. Korman, Henry Mascia and Stuart M. Bodoff of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Terrence C. O’Connor, J.), entered October 20, 2015. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with $25 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 denied plaintiff’s motion for summary judgment, and granted defendant’s cross motion for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs).
Contrary to plaintiff’s contention, defendant’s proof was sufficient to give rise to a presumption that the EUO scheduling letters and denial of claim form had been properly mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Contrary to plaintiff’s further contention, defendant also established plaintiff’s failure to appear for the scheduled EUOs (see e.g. Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; T & J Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co., 47 Misc 3d 130[A], 2015 NY Slip Op 50406[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). [*2]Plaintiff’s remaining contentions lack merit (see Interboro Ins. Co. v Clennon, 113 AD3d 596 [2014]; Palafox PT, P.C. v State Farm Mut. Auto. Ins. Co., 49 Misc 3d 144[A], 2015 NY Slip Op 51653[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; T & J Chiropractic, P.C., 47 Misc 3d 130[A], 2015 NY Slip Op 50406[U]).
Accordingly, the order is affirmed.
PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: June 01, 2018
Reported in New York Official Reports at Acupuncture Healthcare Plaza I, P.C. v Allstate Ins. Co. (2018 NY Slip Op 50835(U))
| Acupuncture Healthcare Plaza I, P.C. v Allstate Ins. Co. |
| 2018 NY Slip Op 50835(U) [59 Misc 3d 150(A)] |
| 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
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