Points of Health Acupuncture, P.C. v Lancer Ins. Co. (2010 NY Slip Op 51338(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, Kings County (Kathryn E. Freed, J.), entered January 13, 2009. The order denied defendant’s motion for summary judgment or, in the alternative, to compel plaintiff to respond to defendant’s discovery demands, and granted plaintiff’s cross motion for summary judgment.

ORDERED that the order is reversed without costs, the branches of defendant’s motion seeking summary judgment dismissing the claims for the sums of $222.76 (dates of service: October 23, 2006 and October 30, 2006), $501.21 and $167.07 are granted, the branch of defendant’s motion seeking to compel plaintiff to respond to defendant’s discovery demands with respect to the remaining claims is granted to the extent set forth herein, plaintiff’s cross motion for summary judgment is denied and the matter is remitted to the Civil Court for all further proceedings on the remaining claims.

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 plaintiff had failed to appear for two scheduled examinations under oath (EUOs). In the alternative, defendant sought to compel plaintiff to provide the information sought in defendant’s discovery demands. Plaintiff opposed defendant’s motion and cross-moved for summary judgment, arguing that defendant had failed to demonstrate that it had timely mailed its verification requests and EUO scheduling letters, and, as a result, had failed to establish that its 30-day claim determination period was tolled and, therefore, that its denial of plaintiff’s claim was timely. Plaintiff also argued that defendant had failed to establish that plaintiff did not appear for the EUOs. In addition, plaintiff asserted that since defendant had not demonstrated that further discovery was needed to enable defendant to raise a triable issue of fact, plaintiff was entitled to summary judgment. The Civil [*2]Court denied defendant’s motion and granted plaintiff’s cross motion, finding that defendant had failed to establish the timely mailing of the denial of claim form and the EUO scheduling letters and had also failed to establish that plaintiff did not appear for the scheduled EUOs. The instant appeal by defendant ensued.

Since defendant does not challenge plaintiff’s prima facie case, we do not pass upon the propriety of the Civil Court’s determination with respect thereto. However, contrary to the finding of the Civil Court, defendant established the timely mailing of the EUO scheduling letters with respect to plaintiff’s claims for the sums of $222.76 (dates of service: October 23, 2006 and October 30, 2006), $501.21 and $167.07. Defendant submitted the affirmation of a partner in the law firm retained by defendant to conduct plaintiff’s EUO in which he set forth in detail his firm’s standard office practice and procedure for the mailing of EUO scheduling letters (see New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). In addition, counsel alleged facts sufficient to establish that plaintiff had failed to appear at counsel’s law office for the duly scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; W & Z Acupuncture, P.C. v Amex Assur. Co., 24 Misc 3d 142[A], 2009 NY Slip Op 51732[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). As plaintiff’s appearance for scheduled EUOs is a condition precedent to the insurer’s liability on the policy (see Insurance Department Regulations [11 NYCRR] § 65-1.1; Stephen Fogel Psychological, P.C., 35 AD3d at 722), the Civil Court should have granted the branch of defendant’s motion for summary judgment to the extent of awarding defendant partial summary judgment dismissing plaintiff’s claims for the sums of $222.76 (dates of service: October 23, 2006 and October 30, 2006), $501.21 and $167.07. We note that contrary to the Civil Court’s finding, the affidavit submitted by defendant’s no-fault specialist established that defendant had timely mailed its denial of claim form with respect to the aforementioned claims (see New York & Presbyt. Hosp., 29 AD3d 547; Residential Holding Corp., 286 AD2d 679).

The first set of letters sent by defendant to plaintiff after defendant received plaintiff’s $334.14 claim (dates of service: July 24, 2006-July 31, 2006) and plaintiff’s $222.76 claim (dates of service: August 14, 2006 and August 15, 2006) merely stated that defendant was waiting for the results of an investigation by its special investigation unit as well as the scheduling of an EUO. Since it is well settled that an insurer’s delay letters, which request no verification, do not toll the statutory time period within which a claim must be paid or denied (see Nyack Hosp. v Encompass Ins. Co., 23 AD3d 535 [2005]; Careplus Med. Supply, Inc. v Selective Ins. Co. of Am., 25 Misc 3d 48 [App Term, 9th & 10th Jud Dists 2009]; Ocean Diagnostic Imaging P.C. v Citiwide Auto Leasing Inc., 8 Misc 3d 138[A], 2005 NY Slip Op 51314[U] [App Term, 2d & 11th Jud Dists 2005]), defendant did not toll the statutory period within which defendant had to pay or deny said claims. While the rest of the letters sent by defendant in response to the remaining claims sent by plaintiff were in fact verification requests, the affidavit submitted by defendant’s no-fault specialist failed to establish that they were timely mailed (see New York & Presbyt. Hosp., 29 AD3d 547; Residential Holding Corp., 286 AD2d 679; Top Choice Med., P.C. v New York Cent. Mut. Fire Ins. Co., 22 Misc 3d 133[A], 2009 NY Slip Op 50230[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). There was thus no tolling of the 30-day period as to these remaining claims. Consequently, with respect to the claims for which defendant did not [*3]establish that the 30-day period was tolled, defendant is precluded from raising most defenses.

Notwithstanding the foregoing, defendant correctly asserts that plaintiff’s cross motion for summary judgment was premature under CPLR 3212 (f). Defendant established that while facts may exist that are essential to justify the denial of plaintiff’s summary judgment motion, defendant was unable to set forth such facts with respect to its non-precluded defense that plaintiff was fraudulently incorporated (see Insurance Department Regulations [11 NYCRR] § 65-3.16 [a] [12]; State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]; Midwood Acupuncture, P.C. v State Farm Fire & Cas. Co., 21 Misc 3d 144[A], 2008 NY Slip Op 52468[U] [App Term, 2d & 11th Jud Dists 2008]), since this information was within plaintiff’s possession and plaintiff had not complied with defendant’s discovery demands therefor (see CPLR 3212 [f]). As plaintiff had failed to challenge the propriety of defendant’s discovery demands, the Civil Court should have granted the branch of defendant’s motion seeking to compel plaintiff to provide the information demanded in defendant’s interrogatories and notice for discovery and inspection with the exception of requests which were palpably improper or which sought information or documents which were privileged (see Fausto v City of New York, 17 AD3d 520 [2005]; Midwood Acupuncture, P.C. v State Farm Fire and Cas. Co., 21 Misc 3d 144[A], 2008 NY Slip Op 52468[U] [App Term, 2d & 11th Jud Dists 2008]; Great Wall Acupuncture v State Farm Mut. Auto. Ins. Co., 20 Misc 3d 136[A], 2008 NY Slip Op 51529[U] [App Term, 2d & 11th Jud Dists 2008]).

In light of the foregoing, the order is reversed, the branches of defendant’s motion seeking summary judgment dismissing the claims for the sums of $222.76 (dates of service: October 23, 2006 and October 30, 2006), $501.21 and $167.07 are granted, the branch of defendant’s motion seeking to compel plaintiff to respond to defendant’s discovery requests is granted to the extent indicated above, plaintiff’s cross motion for summary judgment is denied and the matter is remitted to the Civil Court for all further proceedings on the remaining claims.

Pesce, P.J., and Golia, J., concur.

Rios, J., dissents in a separate memorandum.

Rios, J., dissents and votes to affirm the order in the following memorandum:

I would affirm the order of the Civil Court. While an examination under oath (EUO) is mandated when timely requested by the insurance carrier, here defendant failed to present an affidavit from anyone with personal knowledge that plaintiff did not appear for the EUO. Contrary to the finding by the majority, defense counsel fails to explain how he knows that plaintiff did not attend the scheduled EUO (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).
Decision Date: July 22, 2010