Star Med. Servs., P.C. v Allstate Ins. Co. (2006 NYSlipOp 50344(U))

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Eileen Nadelson, J.), entered October 29, 2004. The order granted plaintiff’s motion for summary judgment.

Order affirmed without costs.

In this action to recover first-party no-fault benefits for medical services rendered to its assignors, plaintiff health care provider established a prima facie entitlement to summary judgment by proof that it submitted claims, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]). Even assuming that defendant had a right to request an examination under oath (EUO) (see Star Med. Servs. v Eagle Ins. Co., 6 Misc 3d 56 [2004]), there is no merit to defendant’s contention that the failure of one of plaintiff’s assignors to appear for an EUO precludes summary judgment with respect to the claims submitted on behalf of said assignor. Defendant failed to send the EUO demand to said assignor at his proper address, and the sending of an EUO request to said assignor’s attorney was insufficient to toll the 30-day statutory period (11 [*2]NYCRR 65-3.8 [c]) within which defendant was required to pay or deny the claim. Accordingly, defendant is precluded from raising most defenses (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]).

However, defendant is not precluded from asserting the defense that the alleged injuries do not arise out of a covered accident, despite the untimely denials of the claims (see Matter of Metro Med. Diagnostics v Eagle Ins. Co., 293 AD2d 751 [2002]). The transcripts of the EUO testimony given by one of plaintiff’s assignors and by defendant’s insured were insufficient to demonstrate that defendant’s denial was based upon a “founded belief that the alleged injur[ies] do[] not arise out of an insured incident” (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]). Accordingly, the order granting plaintiff’s motion for summary judgment should be affirmed.

Rios and Belen, JJ., concur.

Golia, J.P., dissents in a separate memorandum.

Golia, J.P., dissents and votes to reverse the order and deny plaintiff’s motion for summary judgment.

I am in agreement with the majority that an untimely denial does not preclude a defendant from asserting the defense that the claimed collision was in furtherance of a scheme to defraud (see Matter of Metro Med. Diagnostics v Eagle Ins. Co., 293 AD2d 751 [2002]).

However, I disagree that the transcripts of the examination under oath (EUO) testimony given by one of plaintiff’s assignors coupled with that of defendant’s insured was insufficient to demonstrate that defendant’s denial was based upon a “founded belief that the alleged injur[ies] do[] not arise out of an insured incident” (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]).

Even though the defendant’s insured was not present when the accident occurred, his EUO testimony provided actual observations of facts which he made when he arrived at the scene of the accident. Those observations are in direct conflict with the testimony provided by one of the plaintiff’s assignors as to what she claimed she did after the accident. The clear factual conflict between these EUO transcripts is sufficient to meet the standard set forth in Central Gen. Hosp. v Chubb Group of Ins. Cos. (90 NY2d at 199).
Decision Date: March 7, 2006