Appeal from an order of the Civil Court of the City of New York, Queens County (Genine D. Edwards, J.), entered September 28, 2010.
Qi-Health Acupuncture Servs., P.C. v Clarendon Natl. Ins. Co.
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This opinion is uncorrected and will not be published in the printed Official Reports.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 August 6, 2012
PRESENT: PESCE, P.J., WESTON and ALIOTTA, JJ
The order denied defendant's motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, without costs.
In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order which denied its motion for summary judgment dismissing the complaint.
The affidavit submitted by defendant in support of its motion for
summary judgment failed to establish that defendant had timely denied
the claims at issue (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, the Civil Court properly denied defendant's motion
for summary judgment dismissing the complaint, as defendant failed to establish
that it is not precluded from raising as a defense the failure of plaintiff's assignor to
appear for an independent medical examination (see Presbyterian Hosp. in City
of NY v Maryland Cas. Co., 90 NY2d 274, 282 ).
Accordingly, the order is affirmed. Pesce, P.J., Weston and Aliotta, JJ., concur.
Decision Date: August 06, 2012
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