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Qi-Health Acupuncture Services, P.C. As Assignee of andres Salazar, Respondent v. Clarendon National Insurance Co.

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


August 6, 2012

QI-HEALTH ACUPUNCTURE SERVICES, P.C. AS ASSIGNEE OF ANDRES SALAZAR, RESPONDENT,
v.
CLARENDON NATIONAL INSURANCE CO., APPELLANT.

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This opinion is uncorrected and will not be published in the printed Official Reports.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 [2008]; 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 [1997]).

Accordingly, the order is affirmed. Pesce, P.J., Weston and Aliotta, JJ., concur.

Decision Date: August 06, 2012

20120806

© 1992-2012 VersusLaw Inc.



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