May 17, 2018

Active Care Med. Supply, Corp. v American Tr. Ins. Co. (2018 NY Slip Op 51408(U))

Headnote

The court considered a motion by the plaintiff to award summary judgment in an action to recover assigned first-party no-fault insurance benefits, as well as a cross-motion by the defendant seeking dismissal of the case on the basis that the plaintiff's assignor failed to appear for an examination under oath (EUO). The main issue was whether the defendant had failed to deny the claims within the requisite 30-day period or issued timely denials that were conclusory, vague, or without merit as a matter of law. The court held that the plaintiff did not establish that the defendant had failed to deny the claims within the requisite 30-day period, or that the denials issued were conclusory, vague, or without merit as a matter of law. Additionally, the defendant failed to submit competent proof that the assignor failed to appear for the EUO, therefore, both the plaintiff's motion and the defendant's cross-motion were denied as both parties failed to establish entitlement as a matter of law.

Reported in New York Official Reports at Active Care Med. Supply, Corp. v American Tr. Ins. Co. (2018 NY Slip Op 51408(U))

Active Care Medical Supply, Corp., a/a/o Pierre Nadine, Plaintiff,
against
American Transit Insurance Co., Defendant.

43537/15

For plaintiff:
Oleg Rybak, Esq.
The Rybak Firm PLLC
1810 Voorhies Ave., 3rd Fl, Suite 7
Brooklyn NY 11235

For defendant:
Matteo G. Sandusky, Esq.
Law Offices of Daniel J. Tucker
One Metro Tech Center, 7th Fl
Brooklyn, NY 11201

Odessa Kennedy, J.

RECITATION, AS REQUIRED BY CPLR2219(A), OF THE PAPERS CONSIDERED IN THE REVIEW OF THIS MOTION:

Notice of Motion 1

Notice of Cross-Motion 2

Answering Affidavit 3

Reply Affidavit 4

In an action to recover assigned first-party no-fault insurance benefits, plaintiff moves for an order: 1) awarding summary judgment in favor of plaintiff pursuant to CPLR 3211(c) or CPLR 3212(a); 2) limiting the issues of fact for trial pursuant to CPLR 3212(g) that the statutory billing forms were mailed to and received by the insurance carrier and that payment of no-fault benefits was overdue; and 3) dismissing defendant’s affirmative defenses pursuant to CPLR 3211(b). Defendant cross-moves for summary judgment, seeking dismissal on the basis that the plaintiff’s assignor failed to appear for an EUO.

To prevail on its motion, plaintiff has the burden to demonstrate by admissible proof that [*2]the no-fault claim forms underlying the action were submitted to the defendant and that either that defendant had failed to deny the claims within the requisite 30-day period, or that defendant had issued timely denials of the claims that were conclusory, vague or without merit as a matter of law (see Insurance Law section 5106[a]; Westchester Med. Ctr. v. Nationwide Mut. Ins. Co., 78 AD3d 1168, 2010 NY Slip Op. 08933 [App. Div., 2d Dept., 2010]).

In the case at bar, plaintiff did not establish that defendant had failed to deny the claims within the requisite 30-day period, or that defendant had issued timely denials that were conclusory, vague or without merit as a matter of law. Plaintiff’s motion is accordingly, denied.

Defendant, in support of the cross-motion for summary judgement, submits affirmation of Netanel Bencheim, Esq. dated November 20, 2017 which states that the assignor did not appear for an EUO.

Failure to appear for an EUO violates a condition precedent to coverage, and the burden is on defendant to show that the requested party failed to appear (Five Boro Psychological Servs., P.C. v. State Farm Mut. Auto. Ins. Co., 39 Misc 3d 141(A), 2013 NY Slip Op. 50753(U) [App Term, 2d Dept, 2d & 11th Jud Dists, 2013]). Generally, a statement from an attorney alleging that he or she was present in the office on the relevant dates and that he or she would have been the one to conduct the EUO is sufficient to demonstrate personal knowledge of the no-show (T & J Chiropractic, P.C. v. State Farm Mut. Auto. Ins. Co., 47 Misc 3d 130[A], 2015 NY Slip Op. 50406(U) [App Term, 2d Dept, 2d 11th & 13th Jud Dists, 2015]).

In the case at bar, defendant failed to submit competent proof of assignor’s nonappearance. Mr. Bencheim, a shareholder of Bencheim and Associates states that defendant retained his law firm to conduct plaintiff’s EUO which was scheduled to be held on November 30, 2010, and rescheduled to December 29, 2010 due to plaintiff’s nonappearance. Mr. Bencheim states that he has personal knowledge that “the plaintiff did not attend the examination under oath on December 30, 2010″ which is a day after the scheduled date of the examination. As such, defendant failed to establish that plaintiff failed to appear for the examination on the scheduled date of December 29, 2010.

Moreover, Mr. Bencheim states that he has personal knowledge of plaintiff’s non-appearance for the EUO based on his review of the file. The affirmant does not specify or provide the documents he reviewed, or identify the creator(s) of the unspecified documents. Nor does Mr. Bencheim explain the basis of his detailed recollection of assignor’s non-appearance approximately seven years prior to his November 20, 2017 affirmation.

Accordingly, Mr. Bencheim’s affirmation is conclusory and lacks probative value (Utica Acupuncture P.C. v. Amica Mut. Ins. Co., 55 Misc 3d 126(A), 2017 NY Slip Op. 50331(U) [App. Term., 1st Dept., 2017]).

For the foregoing reasons, plaintiff’s motion and defendant’s cross motion are denied as both parties failed to establish entitlement as a matter of law.

Dated: May 17, 2018
ODESSA KENNEDY
Judge of the Civil Court