June 3, 2016

New Quality Med., P.C. v Allstate Ins. Co. (2016 NY Slip Op 50872(U))

Headnote

The court considered the facts of a lawsuit brought by New Quality Medical, P.C., as the assignee of Henry Munoz, against Allstate Insurance Company to recover assigned first-party no-fault benefits. Allstate Insurance Company had moved for summary judgment, arguing that they had timely and properly denied the claims due to the plaintiff's failure to appear for duly scheduled examinations under oath (EUOs). However, the plaintiff argued that Allstate had not established their failure to appear for the EUOs. The main issue decided was whether Allstate had submitted sufficient proof of the plaintiff's nonappearance for the EUOs. The court held that because Allstate failed to submit proof by someone with personal knowledge of the nonappearance of the plaintiff for the EUOs in question, Allstate's motion for summary judgment should have been denied. Therefore, the court reversed the order of the Civil Court and denied Allstate's motion for summary judgment dismissing the complaint.

Reported in New York Official Reports at New Quality Med., P.C. v Allstate Ins. Co. (2016 NY Slip Op 50872(U))

New Quality Med., P.C. v Allstate Ins. Co. (2016 NY Slip Op 50872(U)) [*1]

New Quality Med., P.C. v Allstate Ins. Co.

2016 NY Slip Op 50872(U) [51 Misc 3d 152(A)]

Decided on June 3, 2016

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This opinion is uncorrected and will not be published in the printed Official Reports.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 June 3, 2016

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-1944 K C

New Quality Medical, P.C., as Assignee of HENRY MUNOZ, Appellant,
against
Allstate Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Carolyn E. Wade, J.), entered July 1, 2013. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that defendant had timely and properly denied the claims at issue based on plaintiff’s failure to appear for duly scheduled examinations under oath (EUOs). In opposition to defendant’s motion, plaintiff argued, among other things, that defendant had not established plaintiff’s failure to appear for the EUOs. By order entered July 1, 2013, the Civil Court granted defendant’s motion.

Because defendant failed to submit proof by someone with personal knowledge of the nonappearance of plaintiff for the EUOs in question, defendant’s motion should have been denied (see Bright Med. Supply Co. v IDS Prop. & Cas. Ins. Co., 40 Misc 3d 130[A], 2013 NY Slip Op 51123[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; Alrof, Inc. v Safeco Natl. Ins. Co., 39 Misc 3d 130[A], 2013 NY Slip Op 50458[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]). In light of the foregoing, we reach no other issue.

Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is denied.

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Decision Date: June 03, 2016