Opinion
2015–228 K C
12-19-2017
BIG APPLE ORTHO PRODUCTS, INC., as Assignee of Ianotti, Ann–Marie, Appellant, v. ALLSTATE INSURANCE COMPANY, Respondent.
The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Stern & Montana, LLP (Richard Montana, Esq.), for respondent.
The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant.
Stern & Montana, LLP (Richard Montana, Esq.), for respondent.
PRESENT: MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ.
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 based upon plaintiff's failure to appear for duly scheduled examinations under oath.
Plaintiff correctly argues on appeal 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 form had been timely mailed (see St. Vincent's Hosp. of Richmond v. Government Empls. Ins. Co. , 50 AD3d 1123 [2008] ). Thus, defendant did not demonstrate its entitlement to summary judgment dismissing the complaint.
Accordingly, the order is reversed and defendant's motion for summary judgment dismissing the complaint is denied.
PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.