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Exclusive Physical Therapy, P.C. As Assignee of Aaron Webb v. Mvaic

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS New York Supreme and/or Appellate Courts


May 11, 2012

EXCLUSIVE PHYSICAL THERAPY, P.C. AS ASSIGNEE OF AARON WEBB,
APPELLANT,
v.
MVAIC,
RESPONDENT.

Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered May 14, 2010.

Exclusive Physical Therapy, P.C. v MVAIC

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This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 11, 2012

PRESENT: PESCE, P.J., RIOS and ALIOTTA, 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 to be from a judgment of the same court entered June 22, 2010, pursuant to the May 14, 2010 order, dismissing the complaint (see CPLR 5501 [c]).

ORDERED that the judgment is reversed, without costs, so much of the order entered May 14, 2010 as granted defendant's motion for summary judgment dismissing the complaint is vacated 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 entered May 14, 2010 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]).

Defendant did not establish the actual mailing of the denial of claim forms or defendant's standard office practice and procedure for the mailing of the denial of claim forms during the pertinent time period. We note that, in his affidavit, defendant's claims representative stated that he had begun working for defendant after the denial of claim forms at issue had allegedly been mailed by defendant. Consequently, defendant failed to show that its denial of claim forms had been timely mailed (South Nassau Orthopedic Surgery v Auto One Ins. Co., 32 Misc 3d 129[A], 2011 NY Slip Op 51300[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) and, thus, that it was not precluded from asserting the ground raised in support of its motion for summary judgment. Defendant, therefore, failed to establish its entitlement to summary judgment dismissing the complaint. In light of the foregoing, we reach no other issue.

Accordingly, the judgment is reversed, so much of the order entered May 14, 2010 as granted defendant's motion for summary judgment dismissing the complaint is vacated and defendant's motion for summary judgment dismissing the complaint is denied.

Pesce, P.J., Rios and Aliotta, JJ., concur.

Decision Date: May 11, 2012

20120511

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