|Mind & Body Acupuncture, P.C. v Allstate Ins. Co.|
|2018 NY Slip Op 50779(U) [59 Misc 3d 147(A)]|
|Decided on May 25, 2018|
|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|This opinion is uncorrected and will not be published in the printed Official Reports.|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 (Damin J. Toell of counsel), for appellant. Peter C. Merani, P.C. (Eric. M. Wahrburg of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Terrence C. O'Connor, J.), entered December 16, 2015. 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 appeals from an order of the Civil Court which denied plaintiff's motion for summary judgment, and granted defendant's cross motion for summary judgment dismissing the complaint on the ground that the amounts plaintiff sought to recover, for services rendered prior to April 1, 2013, were in excess of the workers' compensation fee schedule.
Plaintiff correctly argues that the affidavits submitted by defendant did not sufficiently set forth a standard office practice or procedure that would ensure that the denial of claim forms had been timely mailed (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 [*2]AD3d 1123 ). As defendant did not demonstrate that it is not precluded from asserting its proffered defense (cf. 11 NYCRR 65-3.8 [g]  [ii]), defendant is not entitled to summary judgment dismissing the complaint.
However, contrary to plaintiff's contention, the affidavit plaintiff submitted in support of its motion 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 ), or that defendant had issued timely denial of claim forms that were conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 ; 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 motion for summary judgment was properly denied.
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 ELLIOT, JJ., concur.