|Compas Med., P.C. v Allstate Ins. Co.|
|2017 NY Slip Op 51842(U) [58 Misc 3d 138(A)]|
|Decided on December 19, 2017|
|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|This opinion is uncorrected and will not be published in the printed Official Reports.|
The Rybak Firm, PLLC (Joseph D. DePalma, Esq.), for appellant. Law Offices of James F. Sullivan (Gia Tuttolomondo, Esq.), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Ingrid Joseph, J.), entered December 3, 2014. The order granted defendant's motion for summary judgment dismissing the complaint.
ORDERED that the order is reversed, with $30 costs, and defendant's motion for summary judgment dismissing the complaint is denied.
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 on the ground that plaintiff's assignor had failed to appear at duly scheduled examinations under oath.
Plaintiff correctly argues on appeal that the affidavit submitted by defendant did not sufficiently set forth a standard office practice or procedure that would ensure that defendant's denial of claim forms had been timely mailed (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 ). Thus, defendant did not demonstrate its entitlement to summary judgment.
Accordingly, the order is reversed and defendant's motion for summary judgment is denied.
PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.