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W.H.O. Acupuncture, P.C. As Assignee of Nihlawi Mohamad, Appellant v. Geico General Ins. Co.

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


May 11, 2012

W.H.O. ACUPUNCTURE, P.C. AS ASSIGNEE OF NIHLAWI MOHAMAD, APPELLANT, --
v.
GEICO GENERAL INS. CO., RESPONDENT.

Appeal from an order of the Civil Court of the City of New York, Queens County (Genine D. Edwards, J.), entered December 17, 2010.

W.H.O. Acupuncture, P.C. v GEICO Gen. Ins. Co.

Decided on May 11, 2012

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This opinion is uncorrected and will not be published in the printed Official Reports.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: PESCE, P.J., RIOS and ALIOTTA, JJ

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 (see CPLR 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.

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

Decision Date: May 11, 2012

20120511

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