November 1, 2016

Omphil Care, Inc. v Allstate Ins. Co. (2016 NY Slip Op 51602(U))

Headnote

The relevant facts the court considered in this case were that the plaintiff, Omphil Care, Inc., as the assignee of Paul Fabiola, sought to recover first-party no-fault benefits from Allstate Insurance Company. The main issue decided was whether the denial of claim form had been timely mailed. The court held that the defendant's cross-motion for summary judgment dismissing the complaint was denied. The court found that the defendant failed to demonstrate that the denial of claim form had been timely mailed, and therefore, the defendant was not entitled to summary judgment. Additionally, the court found that the plaintiff failed to demonstrate its entitlement to summary judgment, as the affidavit submitted by the plaintiff did not establish that the claim at issue had not been timely denied. Therefore, the court modified the order by providing that the defendant's cross-motion for summary judgment dismissing the complaint is denied.

Reported in New York Official Reports at Omphil Care, Inc. v Allstate Ins. Co. (2016 NY Slip Op 51602(U))

Omphil Care, Inc. v Allstate Ins. Co. (2016 NY Slip Op 51602(U)) [*1]

Omphil Care, Inc. v Allstate Ins. Co.

2016 NY Slip Op 51602(U) [53 Misc 3d 146(A)]

Decided on November 1, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 November 1, 2016

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-2290 Q C

Omphil Care, Inc., as Assignee of PAUL FABIOLA, Appellant,
against
Allstate Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (William A. Viscovich, J.), entered September 13, 2013. 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 moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath. By order entered September 13, 2013, the Civil Court denied plaintiff’s motion and granted defendant’s cross motion.

Plaintiff correctly contends that defendant’s cross-moving papers failed to establish, as a matter of law, that the denial of claim form 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 defense. Consequently, defendant is not entitled to summary judgment. However, contrary to plaintiff’s contention, plaintiff failed to demonstrate its prima facie entitlement to summary judgment, as the affidavit submitted by plaintiff in support of its motion failed to establish that the claim 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]).

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.

Decision Date: November 01, 2016