September 19, 2016

Synergy First Med., P.L.L.C. v Allstate Ins. Co. (2016 NY Slip Op 51365(U))

Headnote

The court considered the insurer's motion for summary judgment to dismiss a complaint by a medical provider seeking payment of no-fault benefits. The insurer argued that the plaintiff's assignor had failed to appear for an examination under oath (EUO) as required. The main issue was whether the insurer demonstrated, as a matter of law, that it twice duly demanded an EUO from the assignor, that the assignor twice failed to appear, and that the insurer issued a timely denial of the claims arising from the provider's treatment of the assignor. The court held that the insurer failed to establish as a matter of law that its denial of claim forms had been properly and timely mailed, and therefore denied the insurer's motion for summary judgment, and the order was affirmed.

Reported in New York Official Reports at Synergy First Med., P.L.L.C. v Allstate Ins. Co. (2016 NY Slip Op 51365(U))

Synergy First Med., P.L.L.C. v Allstate Ins. Co. (2016 NY Slip Op 51365(U)) [*1]

Synergy First Med., P.L.L.C. v Allstate Ins. Co.

2016 NY Slip Op 51365(U) [53 Misc 3d 130(A)]

Decided on September 19, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 September 19, 2016

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-2740 Q C

Synergy First Medical, P.L.L.C., as Assignee of KALEEL GODDETT, Respondent,
against
Allstate Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Carmen R. Velasquez, J.), entered November 13, 2013. The order denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court which denied defendant’s motion for summary judgment dismissing the complaint.

To establish its prima facie entitlement to summary judgment dismissing a complaint on the ground that the plaintiff’s assignor had failed to appear for an examination under oath (EUO), an insurer must demonstrate “as a matter of law that it twice duly demanded an [EUO] from the [provider’s] assignor, . . . that the assignor twice failed to appear, and that the [insurer] issued a timely denial of the claims arising from the [provider’s] treatment of the assignor” (Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2014]). Here, defendant failed to establish as a matter of law that its denial of claim forms had been properly and timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). We reach no other issue.

Accordingly, the order is affirmed.

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

Decision Date: September 19, 2016