May 18, 2015

Health Needles Acupuncture, P.C. v Allstate Ins. Co. (2015 NY Slip Op 50776(U))

Headnote

The main issue in this case was whether the provider, Health Needles Acupuncture, P.C., was entitled to recover assigned first-party no-fault benefits from the defendant, Allstate Insurance Company. The court considered the claim forms that had been mailed to and received by the defendant, and whether the defendant had failed to pay or deny the claim within the prescribed 30-day period. The court found that the plaintiff had established its entitlement to judgment as a matter of law based on the untimeliness of the denials. However, the defendant's affidavits described its standard mailing practices and procedures, establishing the timely mailing of the denial of claim forms and raising a triable issue of fact. As a result, the court affirmed the order denying plaintiff's motion for summary judgment.

Reported in New York Official Reports at Health Needles Acupuncture, P.C. v Allstate Ins. Co. (2015 NY Slip Op 50776(U))

Health Needles Acupuncture, P.C. v Allstate Ins. Co. (2015 NY Slip Op 50776(U)) [*1]

Health Needles Acupuncture, P.C. v Allstate Ins. Co.

2015 NY Slip Op 50776(U) [47 Misc 3d 149(A)]

Decided on May 18, 2015

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This opinion is uncorrected and will not be published in the printed Official Reports.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 May 18, 2015

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2012-2642 K C

Health Needles Acupuncture, P.C. as Assignee of KIM LUMHOO, Appellant,
against
Allstate Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Harriet L. Thompson, J.), entered September 6, 2012. The order denied plaintiff’s motion for summary judgment.

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.

In support of its motion, plaintiff submitted an affidavit executed by plaintiff’s owner which demonstrated, prima facie, that the claim forms at issue had been mailed to and received by defendant, and that defendant had failed to pay or deny the claim within the prescribed 30-day period (see Insurance Law § 5106 [a]; Viviane Etienne Med. Care, P.C. v Country—Wide Ins. Co., 114 AD3d 33, 35 [2013]). Consequently, plaintiff established its prima facie entitlement to judgment as a matter of law based on the untimeliness of the denials. However, the affidavits submitted by defendant in opposition to plaintiff’s motion sufficiently described defendant’s standard mailing practices and procedures to establish the timely mailing of the denial of claim forms (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). As defendant raised a triable issue of fact (see NYU-Hospital for Joint Diseases v Esurance Ins. Co., 84 AD3d 1190 [2011]), plaintiff’s motion for summary judgment was properly denied.

Accordingly, the order is affirmed.

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Decision Date: May 18, 2015