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Wjj Acupuncture, P.C. As Assignee of Alexander Josowitz v. Nationwide Mutual Ins. Co

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS


December 19, 2011

WJJ ACUPUNCTURE, P.C. AS ASSIGNEE OF ALEXANDER JOSOWITZ,
APPELLANT,
v.
NATIONWIDE MUTUAL INS. CO.,
RESPONDENT.

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This opinion is uncorrected and will not be published in the printed Official Reports.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 [2008]; 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

20111219

© 1992-2011 VersusLaw Inc.



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