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Alleviation is going to the Appellate Division – what happens next is for you to decide.December 27, 2017

Alleviation Medical Services P.C. v Allstate Insurance Company, 2017 NY Slip Op 96489(U) (2d Dept. 2017)

“Motion by Allstate Insurance Company for leave to appeal to this Court from an order of the Appellate Term, Second, Eleventh, and Thirteenth Judicial Districts, dated August 4, 2017, which affirmed an order of the Civil Court of the City of New York, Queens County, entered April 1, 2015. Separate motion by New York Insurance Association, Inc., for leave to file papers, as amici curiae, in support of the motion by Allstate Insurance Company.

Upon the papers filed in support of the motion for leave to appeal and the papers filed in opposition and in relation thereto, and upon the papers filed in support of the motion for leave to file papers, as amici curiae, and the papers filed in opposition thereto, it is

ORDERED that the motion by New York Insurance Association, Inc., is granted and its papers have been considered in the determination of the motion by Allstate Insurance Company; and it is further,

ORDERED that the motion by Allstate Insurance Company is granted.”

This really should not surprise anyone.  The Appellate Term should have granted leave in the first instance.  Instead, they tried to hide this case as (U) cite and quietly denied leave to appeal.  My prediction?   Unless DFS submits amicus (and I think they will sit on the sidelines), this will probably be affirmed.  The fallback here is Harmonic v. Praetorian, which I think is the correct rule.  But in light of Dust, I cannot see this Court applying Harmonic v. Praetorian.

Should this be affirmed, expect an amendment within a year after affirmance.

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