Appeal from an order of the Civil Court of the City of New York, Kings County (Margaret A. Pui Yee Chan, J.), dated October 23, 2009.
WJJ Acupuncture, P.C. vNationwide Mut. Ins. Co.
Decided on December 19, 2011
Appellate Term, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
PRESENT: STEINHARDT, J.P., PESCE and WESTON, JJ
The order, insofar as appealed from as limited by the brief, granted defendant's motion for summary judgment dismissing the complaint. ORDERED that the order, insofar as appealed from, is reversed, without 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, as limited by its brief, from so much of an order of the Civil Court as granted defendant's motion for summary judgment dismissing the complaint.
In support of its motion for summary judgment, defendant submitted an
affidavit of its claims representative which established neither that
the denial of claim forms, which denied the claims at issue on the
ground that the fees sought exceeded the amount permitted by the
workers' compensation fee schedule, had actually been timely mailed
nor that they had been timely mailed in accordance with defendant's
standard office practices and procedures so as to give rise to the
presumption of mailing (see St. Vincent's Hosp. of Richmond v
Government Empls. Ins. Co., 50 AD3d 1123 ; Delta Diagnostic
Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d
& 11th Jud Dists 2007]). Thus, defendant's motion for summary
judgment should have been denied.
In view of the foregoing, we reach no other issue. Accordingly, the order, insofar as appealed from, is reversed and defendant's motion for summary judgment is denied.
Steinhardt, J.P., Pesce and Weston, JJ., concur.
Decision Date: December 19, 2011
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