14-145 URBAN WELL ACUPUNCTURE, P.C., A/A/O MANUEL LORA, plf-app, v. American Commerce Ins. Co. def-res

14-145 URBAN WELL ACUPUNCTURE, P.C., A/A/O MANUEL LORA, plf-app, v. American Commerce Ins. Co. def-res — Order (James E. d'Auguste, J.), entered February 27, 2013, reversed, with $10 costs, motion denied, and complaint reinstated.

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14-145 URBAN WELL ACUPUNCTURE, P.C., A/A/O MANUEL LORA, plf-app, v. American Commerce Ins. Co. def-res — Order (James E. d’Auguste, J.), entered February 27, 2013, reversed, with $10 costs, motion denied, and complaint reinstated.

The action, seeking recovery of first-party no-fault benefits, is not ripe for summary dismissal since defendant “failed to…establish that the denial of claim form was in fact mailed to the plaintiff” (Nyack Hosp. v. Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564, 564-565 [2005]; see Mercury Cas. Co. v. Encare, Inc., 90 AD3d 475 [2011]). The affidavit submitted by the defendant insurer to establish proof of mailing — identifying the affiant as a “mailroom representative” of a nonparty to this action, State-Wide Insurance Company (“State-Wide”) — neither stated that the affiant actually mailed the claim denial to plaintiff nor, so far as appears, described defendant’s mailing office practice and procedures (see New York and Presbyterian Hospital v. Allstate Ins. Co., 29 AD3d 547 [2006]), as opposed to those generally followed by State-Wide. Conspicuously absent from defendant’s moving submission was any allegation or showing that a jural relationship existed between defendant and State-Wide. Given these shortcomings in defendant’s proof, we have no occasion to consider whether defendant’s purported mailing of the claim denial to the individual treating acupuncturist rather than the employing professional corporation was proper (see 11 NYCRR 65-3.8[c])

14-145 URBAN WELL ACUPUNCTURE, P.C., A/A/O MANUEL LORA, plf-app, v. American Commerce Ins. Co. def-res

14-145 URBAN WELL ACUPUNCTURE, P.C., A/A/O MANUEL LORA, plf-app, v. American Commerce Ins. Co. def-res — Order (James E. d'Auguste, J.), entered February 27, 2013, reversed, with $10 costs, motion denied, and complaint reinstated.

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