Opinion
2015–2949 Q C
06-01-2018
GL ACUPUNCTURE, P.C., as Assignee of Landarau, Rafael, Appellant, v. ALLSTATE INSURANCE COMPANY, Respondent.
The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Robert P. Tusa, for respondent (no brief filed).
The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant.
Robert P. Tusa, for respondent (no brief filed).
PRESENT: MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant's cross 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, as limited by the brief, from so much of an order of the Civil Court as 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 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] ). As defendant did not demonstrate that it is not precluded from asserting its proffered defense (cf. 11 NYCRR 65–3.8 [g] [1] [ii] ), defendant is not entitled to summary judgment dismissing the complaint.
Accordingly, the order, insofar as appealed from, is reversed and defendant's cross motion for summary judgment dismissing the complaint is denied.
PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.