Advanced Med., P.C. v Utica Mut. Ins. Co. (2009 NY Slip Op 51023(U))

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered October 24, 2007, deemed from a judgment of the same court entered December 6, 2007 (see CPLR 5501 [c]). The judgment, entered pursuant to the October 24, 2007 order granting plaintiff’s motion for summary judgment, awarded plaintiff the principal sum of $1,469.34.

Judgment reversed without costs, order granting plaintiff’s motion for summary judgment vacated and plaintiff’s motion for summary judgment denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. In opposition to the motion, defendant argued, inter alia, that the time in which it had to pay or deny the claims had been tolled due to plaintiff’s assignor’s failure to appear at scheduled examinations under oath (EUOs) and that no coverage existed for the intentional staged loss. The Civil Court granted plaintiff’s motion. The instant appeal by defendant ensued. A judgment was subsequently entered (see CPLR 5501 [c]).

In order for defendant to raise a triable issue of fact based on the assignor’s failure to appear at scheduled EUOs, defendant had to demonstrate that its initial and follow-up requests for verification were timely (see Insurance Department Regulations [11 NYCRR] §§ 65-3.5 [b]; 65-3.6 [b]) and establish, by an affidavit of one with personal knowledge, that the assignor failed to appear for the EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Since defendant failed to establish that the EUO scheduling letters were [*2]timely mailed (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]), defendant failed to demonstrate that the 30-day claim determination period (Insurance Department Regulations [11 NYCRR] § 65-3.8) was tolled. As a result, defendant failed to establish that its denial of claim forms were timely and, thus, that it is not precluded from raising as a defense the failure of plaintiff’s assignor to appear for an EUO (see Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 282 [1997]).

However, defendant was not precluded from asserting the defense that the alleged injuries do not arise out of an insured incident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]). Upon our review of the record, the documents submitted in opposition to plaintiff’s motion, including the affirmation of defendant’s attorney, the copies of transcripts of witness statements and testimony, as well as the affidavits of defendant’s no-fault specialist and investigator, were sufficient to demonstrate that defendant’s defense of lack of coverage was “premised on the fact or founded belief that the alleged injur[ies] do not arise out of an insured incident” (Central Gen. Hosp. at 199). Accordingly, the judgment is reversed, the order granting plaintiff’s motion for summary judgment is vacated and plaintiff’s motion for summary judgment is denied.

Golia and Steinhardt, JJ., concur.

Weston, J.P., dissents in a separate memorandum.

Weston, J.P., dissents and votes to affirm the judgment in the following memorandum.

I concur with the determination of the majority that defendant failed to establish that its denial of claim forms were timely and, thus, that it was not precluded from raising as a defense the failure of plaintiff’s assignor to appear for an examination under oath. However, defendant was not precluded from asserting the defense that
the alleged injuries do not arise out of an insured incident (see Central Gen.
Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]), and I find that the documents submitted in opposition to plaintiff’s motion were insufficient to demonstrate that defendant’s defense of lack of coverage was “premised on the fact or founded belief that the alleged injur[ies] do not arise out of an insured incident” (Central Gen. Hosp. at 199). Thus, the judgment should be affirmed.
Decision Date: May 22, 2009