LAGA v. ALLSTATE INSURANCE COMPANY (2018)

Supreme Court, Appellate Term, New York.

Adelaida M. LAGA, P.T., as Assignee of Mitchell, Rashida, Appellant, v. ALLSTATE INSURANCE COMPANY, Respondent.

2015–1117 K C

Decided: March 23, 2018

PRESENT: MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, BERNICE D. SIEGAL, JJ

The Rybak Firm, PLLC (Damin J. Toell, Karina Barska of counsel), for appellant. Peter C. Merani, P.C. (Josh Youngman, Eric Wahrburg of counsel), for respondent.

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, defendant moved for summary judgment dismissing the complaint. Plaintiff opposed the motion. By order entered January 7, 2015, the Civil Court granted defendant's motion.

Defendant's moving papers failed to establish, as a matter of law, that the denial of claim forms had been timely mailed (see St. Vincent's Hosp. of Richmond v. Government Empls. Ins. Co., 50 AD3d 1123 [2008]). As a result, defendant did not demonstrate that it is not precluded from asserting its proffered defenses. Consequently, defendant is not entitled 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 SIEGAL, JJ., concur.

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