July 14, 2017

St. Locher Med., P.C. v IDS Prop. Cas. Ins. Co. (2017 NY Slip Op 50919(U))

Headnote

The court considered the fact that St. Locher Medical, P.C. was seeking to recover first-party no-fault benefits and that IDS Property Casualty Ins. Co. had moved for summary judgment to dismiss the complaint, claiming that the plaintiff and assignor had failed to attend scheduled examinations under oath. The main issue decided was whether defendant had sufficiently established that the first notice for examination under oath had been timely sent and whether the claims had been timely denied. The holding of the court was that the defendant had failed to demonstrate its entitlement to summary judgment based on the plaintiff's alleged failure to comply with a condition precedent to coverage, and as a result, the order was reversed and the defendant's motion for summary judgment was denied.

Reported in New York Official Reports at St. Locher Med., P.C. v IDS Prop. Cas. Ins. Co. (2017 NY Slip Op 50919(U))

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

St. Locher Medical, P.C., as Assignee of Anthony Alvaranga, Appellant,
against
IDS Property Casualty Ins. Co., Respondent.

Kopelevich & Feldsherova, P.C. (Galina Feldsherova, Esq.), for appellant. Bruno, Gerbino & Soriano, LLP (Mitchell L. Kaufman, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Harriet L. Thompson, J.), entered January 24, 2014. 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, alleging that plaintiff and plaintiff’s assignor had failed to appear at duly scheduled examinations under oath (EUOs). Plaintiff opposed the motion. By order entered January 24, 2014, the Civil Court granted defendant’s motion.

As plaintiff argues, defendant’s moving papers failed to establish that the first EUO scheduling letter defendant sent to plaintiff had been timely, since defendant stated that the letter was sent more than 30 days after defendant had received the claims (see Neptune Med. Care, P.C. v Ameriprise Auto & Home Ins., 48 Misc 3d 139[A], 2015 NY Slip Op 51220[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; O & M Med., P.C. v Travelers Indem. Co., 47 Misc 3d 134[A], 2015 NY Slip Op 50476[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Moreover, defendant’s moving papers did not demonstrate that the claims had been timely denied (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2009]). In view of the foregoing, defendant failed to demonstrate its entitlement to summary judgment based upon plaintiff’s failure to comply with a condition precedent to coverage (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).

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.

ENTER:
Paul Kenny
Chief Clerk

Decision Date: July 14, 2017