September 19, 2016

K.O. Med., P.C. v Allstate Ins. Co. (2016 NY Slip Op 51367(U))

Headnote

The main issue in this case was whether the defendant's motion for summary judgment dismissing the complaint should be denied. The court considered the fact that the defendant's moving papers failed to establish that the plaintiff's assignor had failed to appear for independent medical examinations, and also did not demonstrate timely mailing of the defendant's denial of claim forms. Ultimately, the court affirmed the order, ruling in favor of the plaintiff, K.O. Medical, P.C., as Assignee of JAWARA MILLINGTON, and denying the defendant's motion for summary judgment. The holding of the case was that the Civil Court correctly found that the defendant's moving papers failed to establish as a matter of law that the plaintiff's assignor had failed to appear for independent medical examinations, and did not demonstrate timely mailing of the defendant's denial of claim forms.

Reported in New York Official Reports at K.O. Med., P.C. v Allstate Ins. Co. (2016 NY Slip Op 51367(U))

K.O. Med., P.C. v Allstate Ins. Co. (2016 NY Slip Op 51367(U)) [*1]

K.O. Med., P.C. v Allstate Ins. Co.

2016 NY Slip Op 51367(U) [53 Misc 3d 130(A)]

Decided on September 19, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 September 19, 2016

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2014-1013 K C

K.O. Medical, P.C., as Assignee of JAWARA MILLINGTON, Respondent,
against
Allstate Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered January 23, 2014. The order denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with $25 costs.

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

Contrary to defendant’s contention, the Civil Court correctly found that defendant’s moving papers failed to establish as a matter of law that plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations (see Alrof, Inc. v Safeco Natl. Ins. Co., 39 Misc 3d 130[A], 2013 NY Slip Op 50458[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]). In addition, defendant’s moving papers do not demonstrate timely mailing of defendant’s denial of claim forms (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]).

Accordingly, the order is affirmed.

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

Decision Date: September 19, 2016