August 6, 2012

Qi-Health Acupuncture Servs., P.C. v Clarendon Natl. Ins. Co. (2012 NY Slip Op 51494(U))

Headnote

The court considered the denial of a motion for summary judgment by the defendant in an action to recover first-party no-fault benefits. The main issue decided was whether the defendant had timely denied the claims at issue, as required by law. The court held that the affidavit submitted by the defendant failed to establish that the claims had been timely denied, and therefore the defendant's motion for summary judgment was properly denied. As a result, the court affirmed the order, stating that the defendant failed to establish that it was not precluded from raising the failure of the plaintiff's assignor to appear for an independent medical examination as a defense.

Reported in New York Official Reports at Qi-Health Acupuncture Servs., P.C. v Clarendon Natl. Ins. Co. (2012 NY Slip Op 51494(U))

Qi-Health Acupuncture Servs., P.C. v Clarendon Natl. Ins. Co. (2012 NY Slip Op 51494(U)) [*1]

Qi-Health Acupuncture Servs., P.C. v Clarendon Natl. Ins. Co.

2012 NY Slip Op 51494(U) [36 Misc 3d 141(A)]

Decided on August 6, 2012

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This opinion is uncorrected and will not be published in the printed Official Reports.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 August 6, 2012

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

PRESENT: : PESCE, P.J., WESTON and ALIOTTA, JJ
2010-2949 Q C.

Qi-Health Acupuncture Services, P.C. as Assignee of ANDRES SALAZAR, Respondent, —
against
Clarendon National Insurance Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Genine D. Edwards, J.), entered September 28, 2010. 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 which denied its motion for summary judgment dismissing the complaint.

The affidavit submitted by defendant in support of its motion for summary judgment failed to establish that defendant had timely denied the claims at issue (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]). Thus, the Civil Court properly denied defendant’s motion for summary judgment dismissing the complaint, as defendant failed to establish that it is not precluded from raising as a defense the failure of plaintiff’s assignor to appear for an independent medical examination (see Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 282 [1997]).

Accordingly, the order is affirmed.
[*2]Pesce, P.J., Weston and Aliotta, JJ., concur.
Decision Date: August 06, 2012