October 18, 2019

Charles Deng Acupuncture, P.C. v Allstate Ins. Co. (2019 NY Slip Op 51693(U))

Headnote

The court considered the appeal from an order of the Civil Court which granted the defendant's motion for summary judgment dismissing the complaint and denied the plaintiff's cross motion for summary judgment in an action to recover assigned first-party no-fault benefits. The main issue was whether the defendant's papers established, as a matter of law, that the denial of claim forms had been timely mailed, and if the defendant is entitled to summary judgment dismissing the complaint. The holding of the court was that while the defendant failed to demonstrate that it is not precluded from asserting its proffered defenses and is not entitled to summary judgment, the plaintiff also failed to establish that the claims at issue had not been timely denied or that the defendant had issued timely denials of claim that were conclusory, vague or without merit. Therefore, the court modified the order by providing that the defendant's motion for summary judgment dismissing the complaint is denied.

Reported in New York Official Reports at Charles Deng Acupuncture, P.C. v Allstate Ins. Co. (2019 NY Slip Op 51693(U))

Charles Deng Acupuncture, P.C. v Allstate Ins. Co. (2019 NY Slip Op 51693(U)) [*1]

Charles Deng Acupuncture, P.C. v Allstate Ins. Co.

2019 NY Slip Op 51693(U) [65 Misc 3d 139(A)]

Decided on October 18, 2019

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This opinion is uncorrected and will not be published in the printed Official Reports.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 October 18, 2019

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

PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, BERNICE D. SIEGAL, JJ
2018-243 K C

Charles Deng Acupuncture, P.C., as Assignee of Scott, Jordan, Appellant,
against
Allstate Insurance Company, Respondent.

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Law Office of Karen L. Lawrence (Cheryl Scher of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Richard J. Montelione, J.), entered September 29, 2017. 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 and denied plaintiff’s cross motion for summary judgment.

Plaintiff correctly contends that defendant’s papers failed to establish, as a matter of law, 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 a result, defendant did not demonstrate that it is not precluded from asserting its proffered defenses. Consequently, defendant is not entitled to summary judgment dismissing the complaint.

However, contrary to plaintiff’s further contention, plaintiff failed to establish that the claims at issue had not been timely denied (see Viviane Etienne Med. Care, P.C. v Country-Wide [*2]Ins. Co., 25 NY3d 498 [2015]), or that defendant had issued timely denials of claim 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, plaintiff’s cross motion for summary judgment was properly denied.

Accordingly, the order is modified by providing that defendant’s motion for summary judgment dismissing the complaint is denied.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: October 18, 2019