Cpm Surgical Supply, Inc. v. Allstate Prop. & Cas. Ins. Co.

• Court: Appellate Terms of the Supreme Court of New York
• Decided: September 21, 2016
• Docket: 2016 NYSlipOp 51377(U)
• Status: Published

Opinion

CPM Surgical Supply, Inc., as Assignee of SHOMBE HEMPFIELD, Appellant,

against

Allstate Property & Casualty Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered May 21, 2014. The order granted defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, with $30 costs, 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 from an order of the Civil Court which granted defendant's motion for summary judgment dismissing the complaint. Defendant's motion was based on plaintiff's failure to appear for duly scheduled examinations under oath.

Plaintiff correctly argues on appeal that the affidavits submitted by defendant did not sufficiently set forth a standard office practice or procedure that would ensure that the denial of claim form had been timely mailed (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Thus, defendant did not demonstrate its entitlement to summary judgment.

Accordingly, the order is reversed and defendant's motion for summary judgment dismissing the complaint is denied.

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

Decision Date: September 21, 2016