Opinion
No. 2011–244QC.
2012-05-11
W.H.O. Acupuncture, P.C. as Assignee of NIHLAWI MOHAMAD, Appellant, v. GEICO General Ins. Co., Respondent.
Present: PESCE, P.J., RIOS and ALIOTTA, JJ.
Appeal from an order of the Civil Court of the City of New York, Queens County (Genine D. Edwards, J.), entered December 17, 2010. The order, insofar as appealed from as limited by the brief, granted defendant's cross motion for summary judgment dismissing the complaint. The appeal is deemed from a judgment of the same court entered January 18, 2011, pursuant to the December 17, 2010 order, dismissing the complaint (see CPLR 5501[c] ).
ORDERED that the judgment is reversed, without costs, so much of the order as granted the branch of defendant's cross motion seeking summary judgment dismissing the complaint as to services rendered from August 2, 2007 to August 9, 2007 is vacated, and that branch of defendant's cross motion is denied.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals, as limited by its brief, from so much of an order as granted defendant's cross motion for summary judgment dismissing the complaint. A judgment was subsequently entered, from which the appeal is deemed to have been taken ( seeCPLR 5501[c] ).
While defendant demonstrated, prima facie, that it had timely denied the claims at issue, by submitting an affidavit of an employee of its claims division setting forth defendant's standard office practices and procedures for mailing denial of claim forms ( see St. Vincent's Hosp. of Richmond v. Government Empls. Ins. Co., 50 AD3d 1123 [2008];Delta Diagnostic Radiology, P.C. v. Chubb Group of Ins., 17 Misc.3d 16 [App Term, 2d & 11th Jud Dists 2007] ), plaintiff's employee's affidavit, submitted in support of plaintiff's motion for summary judgment, created a triable issue of fact as to whether the claim for services rendered from August 2, 2007 to August 9, 2007 had been timely denied. As a result, defendant's motion for summary judgment dismissing the complaint should not have been granted as to that claim.
Accordingly, the judgment is reversed, so much of the order as granted the branch of defendant's cross motion seeking summary judgment dismissing the complaint as to the services rendered from August 2, 2007 to August 9, 2007 is vacated, and that branch of defendant's cross motion is denied.