Opinion
2015–2722 K C
06-01-2018
ACUPUNCTURE HEALTHCARE PLAZA I, P.C., as Assignee of Mozorov, Aleksandr, Respondent, v. ALLSTATE INSURANCE COMPANY, Appellant.
Law Offices of Peter C. Merani, P.C. (Eric M. Wahrburg of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent.
Law Offices of Peter C. Merani, P.C. (Eric M. Wahrburg of counsel), for appellant.
The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent.
PRESENT: MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ.
ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order of the Civil Court as denied the branches of defendant's motion seeking summary judgment dismissing the first through fourth causes of action.
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 at issue had been timely mailed (see St. Vincent's Hosp. of Richmond v. Government Empls. Ins. Co. , 50 AD3d 1123 [2008] ). As defendant did not demonstrate that it is not precluded from asserting its proffered defense—that plaintiff's assignor had failed to appear for duly scheduled independent medical examinations—defendant is not entitled to summary judgment dismissing the first through fourth causes of action.
Accordingly, the order, insofar as appealed from, is affirmed.
PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.