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Blr Chiropractic, P.C. As Assignee of Katrina Sandberry v. New York Central Mutual Fire Insurance Company

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


September 5, 2012

BLR CHIROPRACTIC, P.C. AS ASSIGNEE OF KATRINA SANDBERRY,
RESPONDENT,
v.
NEW YORK CENTRAL MUTUAL FIRE INSURANCE COMPANY,
APPELLANT.

Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered October 27, 2010.

BLR Chiropractic, P.C. v New York Cent. Mut. Fire Ins. Co.

Decided on September 5, 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This opinion is uncorrected and will not be published in the printed Official Reports.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, denied defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, without costs, and defendant's motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint and plaintiff cross-moved for summary judgment. The Civil Court denied both the motion and the cross motion, finding that plaintiff had established its prima facie case, that defendant had demonstrated that plaintiff's assignor had failed to appear for properly scheduled examinations under oath, and that the sole issue for trial was the timeliness of defendant's denial of the claim. Defendant appeals from so much of the order as denied its motion for summary judgment dismissing the complaint.

Contrary to the Civil Court's finding, the affidavit executed by defendant's litigation examiner demonstrated that defendant's denial of claim form had been timely mailed (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]). As plaintiff has not challenged the Civil Court's finding, in effect, that defendant is otherwise entitled to judgment, defendant's motion for summary judgment dismissing the complaint is granted (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; W & Z Acupuncture, P.C. v Amex Assur. Co., 24 Misc 3d 142[A], 2009 NY Slip Op 51732[U] [App Term, 2d, 11th & 13th Jud Dists 2009]).

Pesce, P.J., Rios and Aliotta, JJ., concur. Decision Date: September 05, 2012

20120905

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