March 7, 2016

Contemporary Acupuncture, P.C. v Allstate Ins. Co. (2016 NY Slip Op 50464(U))

Headnote

The relevant fact the court considered in this case was a provider's attempt to recover assigned first-party no-fault benefits from an insurance company. The main issue decided was whether the insurance company was entitled to summary judgment dismissing the complaint based on the alleged failure of the plaintiff's assignor to appear for duly scheduled examinations under oath (EUOs). The holding of the court was that the insurance company failed to establish a prima facie showing of its entitlement to summary judgment, as it did not prove that the EUO notices and the denial of claim forms had been properly and timely mailed. Therefore, the court affirmed the order denying the insurance company's motion for summary judgment.

Reported in New York Official Reports at Contemporary Acupuncture, P.C. v Allstate Ins. Co. (2016 NY Slip Op 50464(U))

Contemporary Acupuncture, P.C. v Allstate Ins. Co. (2016 NY Slip Op 50464(U)) [*1]

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

2016 NY Slip Op 50464(U) [51 Misc 3d 132(A)] [51 Misc 3d 132(A)]

Decided on March 7, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 March 7, 2016

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS

PRESENT: : MARANO, P.J., IANNACCI and GARGUILO, JJ.
2014-248 S C

Contemporary Acupuncture, P.C., as Assignee of TIFFANY WADE, Respondent,
against
Allstate Insurance Company, Appellant.

Appeal from an order of the District Court of Suffolk County, Sixth District (Janine A. Barbera-Dalli, J.), dated December 11, 2013. The order denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the District Court which denied defendant’s motion for summary judgment dismissing the complaint.

Defendant’s motion for summary judgment dismissing the complaint was based on the alleged failure of plaintiff’s assignor to appear for duly scheduled examinations under oath (EUOs). Upon a review of the record, we find that defendant failed to establish a prima facie showing of its entitlement to summary judgment. Among other things, defendant failed to establish as a matter of law that the EUO notices and the denial of claim forms at issue had been properly and timely mailed (see Progressive Cas. Ins. Co. v Infinite Ortho Prods., Inc., 127 AD3d 1050 [2015]; St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Richard Morgan Do, P.C. v State Farm Mut. Auto. Ins. Co., 22 Misc 3d 134[A], 2009 NY Slip Op 50242[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2009]). Consequently, defendant’s motion was properly denied.

Accordingly, the order is affirmed.

Marano, P.J., Iannacci and Garguilo, JJ., concur.

Decision Date: March 07, 2016