Opinion
2018-243 K C
10-18-2019
CHARLES DENG ACUPUNCTURE, P.C., as Assignee of Scott, Jordan, Appellant, v. ALLSTATE INSURANCE COMPANY, Respondent.
The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Law Office of Karen L. Lawrence (Cheryl Scher of counsel), for respondent.
The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Law Office of Karen L. Lawrence (Cheryl Scher of counsel), for respondent.
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, BERNICE D. SIEGAL, JJ
ORDERED that the order is modified by providing that defendant's 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 granted defendant's motion for summary judgment dismissing the complaint and denied plaintiff's cross motion for summary judgment.
Plaintiff correctly contends that defendant's papers failed to establish, as a matter of law, 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 a result, defendant did not demonstrate that it is not precluded from asserting its proffered defenses. Consequently, defendant is not entitled to summary judgment dismissing the complaint.
However, contrary to plaintiff's further contention, plaintiff 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 timely denials of claim that were 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 cross motion for summary judgment was properly denied.
Accordingly, the order is modified by providing that defendant's motion for summary judgment dismissing the complaint is denied.
PESCE, P.J., ALIOTTA and SIEGAL, JJ., concur.