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Urban Well Acupuncture, P.C. v. Am. Commerce Ins. Co.

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
Oct 22, 2014
45 Misc. 3d 128 (N.Y. App. Term 2014)

Opinion

570167/14

10-22-2014

Urban Well Acupuncture, P.C., a/a/o Manuel Lora, Plaintiff-Appellant, v. American Commerce Ins. Co. Defendant-Respondent.


PRESENT: Schoenfeld, J.P., Shulman, Ling-Cohan, JJ.

Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (James E. d'Auguste, J.), entered February 27, 2013, which granted defendant's motion for summary judgment dismissing the complaint.

Per Curiam.

Order (James E. d'Auguste, J.), entered February 27, 2013, reversed, with $10 costs, motion denied, and complaint reinstated.

The action, seeking recovery of first-party no-fault benefits, is not ripe for summary dismissal since defendant "failed to . . . establish that the denial of claim form was in fact mailed to the plaintiff" (Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564, 564-565 [2005]; see Mercury Cas. Co. v Encare, Inc., 90 AD3d 475 [2011]). The affidavit submitted by the defendant insurer to establish proof of mailing - identifying the affiant as a "mailroom representative" of a nonparty to this action, State-Wide Insurance Company ("State-Wide") - neither stated that the affiant actually mailed the claim denial to plaintiff nor, so far as appears, described defendant's mailing office practice and procedures (see New York and Presbyterian Hospital v Allstate Ins. Co., 29 AD3d 547 [2006]), as opposed to those generally followed by State-Wide. Conspicuously absent from defendant's moving submission was any allegation or showing that a jural relationship existed between defendant and State-Wide. Given these shortcomings in defendant's proof, we have no occasion to consider whether defendant's purported mailing of the claim denial to the individual treating acupuncturist rather than the employing professional corporation was proper (see 11 NYCRR 65-3.8[c])

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concurI concur

Decision Date: October 22, 2014


Summaries of

Urban Well Acupuncture, P.C. v. Am. Commerce Ins. Co.

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
Oct 22, 2014
45 Misc. 3d 128 (N.Y. App. Term 2014)
Case details for

Urban Well Acupuncture, P.C. v. Am. Commerce Ins. Co.

Case Details

Full title:Urban Well Acupuncture, P.C., a/a/o Manuel Lora, Plaintiff-Appellant, v…

Court:SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

Date published: Oct 22, 2014

Citations

45 Misc. 3d 128 (N.Y. App. Term 2014)
2014 N.Y. Slip Op. 51520
3 N.Y.S.3d 287