June 17, 2022

Aminov v National Liab. & Fire Ins. (2022 NY Slip Op 50596(U))

Headnote

In this case, Lev Aminov, M.D., as the assignee of Joyce Brout, brought an action to recover assigned first-party no-fault benefits from National Liability and Fire Insurance. The main issue before the court was whether the denial of claim forms were properly addressed and mailed by the defendant, as demonstrated by the affidavit submitted by the defendant in support of its motion for summary judgment. The court considered the discrepancy between the affidavit and the mailing logs annexed as exhibits to the motion, and the existence of an issue of fact as to whether the denial of claim forms were mailed pursuant to a standard office practice or procedure. The court ultimately held that the defendant did not demonstrate its entitlement to summary judgment, and affirmed the order denying defendant's motion for summary judgment.

Reported in New York Official Reports at Aminov v National Liab. & Fire Ins. (2022 NY Slip Op 50596(U))

Aminov v National Liab. & Fire Ins. (2022 NY Slip Op 50596(U)) [*1]

Aminov v National Liab. & Fire Ins.

2022 NY Slip Op 50596(U) [75 Misc 3d 140(A)]

Decided on June 17, 2022

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This opinion is uncorrected and will not be published in the printed Official Reports.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 17, 2022

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : THOMAS P. ALIOTTA, P.J., WAVNY TOUSSAINT, DONNA-MARIE E. GOLIA, JJ
2019-685 K C

Lev Aminov, M.D., as Assignee of Joyce Brout, Respondent,
against
National Liability and Fire Insurance, Appellant.

Law Offices of Moira Doherty, P.C. (Janice P. Rosen of counsel), for appellant. Gary Tsirelman, P.C. (Gary Tsirelman of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), dated December 3, 2018. The order, insofar as appealed from, denied defendant’s 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, defendant appeals from so much of an order of the Civil Court as denied defendant’s motion for summary judgment dismissing the complaint.

As plaintiff argued in opposition to defendant’s motion for summary judgment, the discrepancy between the affidavit submitted by defendant in support of its motion and the mailing logs defendant annexed as exhibits to that motion demonstrates that an issue of fact exists as to whether the denial of claim forms were mailed pursuant to a standard office practice or procedure which would have given rise to a presumption that the denial of claims forms had been properly addressed and mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; TAM Med. Supply Corp. v National Liab. & Fire Ins. Co., 53 Misc 3d 134[A], 2016 NY Slip Op 51423[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]). Thus, defendant did not demonstrate its entitlement to summary judgment. We reach no other issue.

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

ALIOTTA, P.J., TOUSSAINT and GOLIA, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: June 17, 2022