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W.H.O. Acupuncture, P.C. As Assignee of Basalo Leonard v. State-Wide Ins. Co

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


December 19, 2011

W.H.O. ACUPUNCTURE, P.C. AS ASSIGNEE OF BASALO LEONARD,
APPELLANT,
v.
STATE-WIDE INS. CO.,
RESPONDENT.

Appeal from an order of the Civil Court of the City of New York, Queens County (Carmen R. Velasquez, J.), entered July 12, 2010.

W.H.O. Acupuncture, P.C. v State-Wide Ins. Co.

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This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 19, 2011

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. The appeal is deemed from a judgment of the same court entered July 28, 2010, dismissing the complaint (see CPLR 5501 [c]).

ORDERED that the judgment is reversed, without costs, so much of the order as granted defendant's motion for summary judgment dismissing the complaint is vacated, and defendant's motion for summary judgment 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 motion for summary judgment dismissing the complaint. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

The sole argument raised on appeal is that defendant was not entitled to summary judgment because defendant's denial of claim form was untimely. Although this argument is raised for the first time on appeal, the affidavit of defendant's claims examiner admits that the denial of claim form was mailed more than 30 days after defendant had received plaintiff's claims. As a result, "this issue may be raised for the first time on appeal, since it is one of law appearing on the face of the record and it could not have been avoided had it been raised at the proper juncture" (Navillus Tile, Inc. v George A. Fuller Co., Inc., 83 AD3d 919, 920 [2011]; see also Olim Realty v Lanaj Home Furnishings, 65 AD3d 1318, 1320 [2009]). Inasmuch as defendant's moving papers were insufficient to establish that defendant had timely mailed requests for verification (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]), defendant failed to establish that its 30-day claim determination period was tolled. In light of the foregoing, defendant's motion for summary judgment should have been denied.

Accordingly, the judgment is reversed, so much of the order as granted defendant's motion for summary judgment dismissing the complaint is vacated, and defendant's motion for summary judgment is denied. Steinhardt, J.P., Pesce and Weston, JJ., concur.

Decision Date: December 19, 2011

20111219

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