July 19, 2019

Mollo v 21st Century Ins. Co. (2019 NY Slip Op 51182(U))

Headnote

The main issue decided in this case was whether certain letters from the defendant insurance company constituted delay letters and failed to toll the time to pay or deny the claims made by the provider. The court considered the sufficiency of the examination under oath (EUO) scheduling letters and the timely mailing of the denial of claim forms. The court found that the examination under oath (EUO) scheduling letters were timely mailed and the affidavits submitted by the defendant sufficiently established the timely mailing of the denial of claim forms. As a result, the court affirmed the order that denied the plaintiff's motion for summary judgment and granted the defendant's cross motion for summary judgment dismissing the complaint.

Reported in New York Official Reports at Mollo v 21st Century Ins. Co. (2019 NY Slip Op 51182(U))

Mollo v 21st Century Ins. Co. (2019 NY Slip Op 51182(U)) [*1]

Mollo v 21st Century Ins. Co.

2019 NY Slip Op 51182(U) [64 Misc 3d 138(A)]

Decided on July 19, 2019

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 19, 2019

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : MICHAEL L. PESCE, P.J., MICHELLE WESTON, THOMAS P. ALIOTTA, JJ
2017-615 K C

Darren T. Mollo, D.C., as Assignee of Barnes, Omari, Appellant,
against
21st Century Insurance Company, Respondent.

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Law Offices of Bryan M. Rothenberg (Konstantinos Tsirkas of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Theresa M. Ciccotto, J.), entered February 2, 2017. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

Plaintiff correctly contends that certain letters from defendant were delay letters which failed to toll defendant’s time to pay or deny the claims. However, defendant’s motion also included copies of the examination under oath (EUO) scheduling letters which were timely mailed by the law firm retained by defendant to conduct the EUOs, and plaintiff has raised no issue with respect to the sufficiency of those letters (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Great Health Care Chiropractic, P.C. v Nationwide Ins., 46 Misc 3d 130[A], 2014 NY Slip Op 51812[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]). Additionally, contrary to plaintiff’s argument, the affidavits submitted by defendant sufficiently established the timely mailing of the denial of claim forms (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123).

Accordingly, the order is affirmed.

PESCE, P.J., WESTON and ALIOTTA, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: July 19, 2019