Opinion
2016–198 Q C
06-01-2018
COMPREHENSIVE CARE PHYSICAL THERAPY, P.C., as Assignee of Campbell, Latoya, Appellant, v. ALLSTATE INSURANCE COMPANY, Respondent.
The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Law Offices of Peter C. Merani, P.C. (Eric M. Wahrburg of counsel), for respondent.
The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant.
Law Offices of Peter C. Merani, P.C. (Eric M. Wahrburg of counsel), for respondent.
PRESENT: MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
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 first through ninth causes of action on the ground that plaintiff's assignor had failed to appear for duly scheduled independent medical examinations (IMEs) and the tenth cause of action, for services rendered prior to April 1, 2013, on the ground that it sought to recover an amount 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 AD3d 1123 [2008] ). As defendant did not demonstrate that it is not precluded from asserting its defense that plaintiff's assignor had failed to appear for IMEs (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co. , 60 AD3d 1045 [2009] ), or its fee schedule defense (cf. 11 NYCRR 65–3.8 [g] [1] [ii] ), defendant is not entitled to summary judgment dismissing the complaint.
Contrary to plaintiff's further 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 [2015] ), 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 [2010] ; 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.