SS Med. Care, P.C. v Nationwide Ins. (2013 NY Slip Op 51109(U))

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Pamela L. Fisher, J.), entered November 2, 2011. The order, insofar as appealed from as limited by the brief, granted the branches of defendant’s motion seeking summary judgment dismissing the second, third, fourth and fifth causes of action.

ORDERED that the order, insofar as appealed from, is reversed, without costs, and the branches of defendant’s motion seeking summary judgment dismissing the second, third, fourth and fifth causes of action are denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals, as limited by its brief, from so much of an order of the Civil Court as granted the branches of defendant’s motion seeking summary judgment dismissing the second, third, fourth and fifth causes of action. Defendant denied the claims at issue on the ground that plaintiff’s assignor had failed to attend scheduled examinations under oath (EUOs) and independent medical examinations (IMEs).

In order for defendant to make a prima facie showing of its entitlement to summary [*2]judgment based on plaintiff’s assignor’s failure to appear at scheduled EUOs and IMEs, defendant had to demonstrate that its initial and follow-up letters scheduling the EUOs and IMEs had been timely mailed (see Insurance Department Regulations [11 NYCRR] §§ 65-3.5 [b]; 65-3.6 [b]) and that the assignor had failed to appear (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).

In support of its motion, defendant submitted, among other things, EUO scheduling letters mailed to plaintiff’s assignor at three different addresses. Defendant, however, did not establish that it had mailed follow-up scheduling letters (see Insurance Department Regulations [11 NYCRR] § 65-3.6 [b]) after the assignor had failed to appear for the initially scheduled EUOs. With respect to defendant’s request that the assignor attend IMEs, defendant submitted an affidavit of an employee of a company which was contracted to schedule medical examinations on defendant’s behalf. The employee attested that it was her company’s standard practice to mail a scheduling letter to the injured party at the address provided by the insurance carrier, as shown on the NF-2 verification of treatment form. Although the NF-2 form, which defendant annexed as an exhibit to its motion, provided an address in Port Jefferson Station, New York, the employee stated that IME scheduling letters and follow-up letters had, in fact, been mailed to the assignor at two different addresses in the Bronx. As a result, defendant’s submissions were insufficient to establish that the requests for EUOs and IMEs had been properly addressed and mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; see also Star Med. Servs., P.C. v Allstate Ins. Co., 11 Misc 3d 131[A], 2006 NY Slip Op 50344[U] [App Term, 2d & 11th Jud Dists 2006]).

Accordingly, the order, insofar as appealed from, is reversed and the branches of defendant’s motion seeking summary judgment dismissing the second, third, fourth and fifth causes of action of the complaint are denied. In view of the foregoing, we do not reach plaintiff’s remaining contentions.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: July 01, 2013