December 19, 2017

Healing Art Acupuncture, P.C. v Allstate Ins. Co. (2017 NY Slip Op 51821(U))

Headnote

The court considered the denial of first-party no-fault benefits by the defendant in this case. The main issue was whether the defendant's affidavits sufficiently demonstrated that the denial of claim forms had been timely mailed, and whether the plaintiff's motion for summary judgment should be granted. The court held that the defendant did not sufficiently demonstrate that it was not precluded from asserting its defense that the amounts sought to be recovered were in excess of the workers' compensation fee schedule. However, the court also held that the plaintiff failed to establish that the claims at issue had not been timely denied, and therefore their motion for summary judgment was properly denied. As a result, the order was modified to deny the defendant's cross motion for summary judgment dismissing the complaint.

Reported in New York Official Reports at Healing Art Acupuncture, P.C. v Allstate Ins. Co. (2017 NY Slip Op 51821(U))

Healing Art Acupuncture, P.C. v Allstate Ins. Co. (2017 NY Slip Op 51821(U)) [*1]
Healing Art Acupuncture, P.C. v Allstate Ins. Co.
2017 NY Slip Op 51821(U) [58 Misc 3d 136(A)]
Decided on December 19, 2017
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This opinion is uncorrected and will not be published in the printed Official Reports.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 December 19, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2015-1116 K C

Healing Art Acupuncture, P.C., as Assignee of Singh Neilpattie, Appellant,

against

Allstate Insurance Company, Respondent.

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Bruno, Gerbino & Soriano, LLP (Mitchell L. Kaufman, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Harriet L. Thompson, J.), entered March 30, 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 modified by providing that defendant’s cross 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 denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

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—that the amounts plaintiff sought to recover were in excess of the workers’ compensation fee schedule— defendant is not entitled to summary judgment dismissing the complaint.

However, contrary to plaintiff’s contention, the affidavit plaintiff submitted in support of [*2]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 a timely denial of claim that was 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 motion for summary judgment was properly denied.

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

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


ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 19, 2017