July 14, 2006

West Tremont Med. Diagnostic, P.C. v Allstate Ins. Co. (2006 NY Slip Op 51374(U))

Headnote

The relevant facts considered by the court were that the plaintiff, a health care provider, submitted a claim form for no-fault benefits for services rendered to its assignor, and that payment of benefits was overdue. The main issue decided by the court was whether the insurance policy in effect contained an endorsement authorizing examinations under oath (EUO) pursuant to 11 NYCRR 65-1.1(d). The court held that the plaintiff established a prima facie entitlement to summary judgment by proving that they submitted the claim form and that payment of benefits was overdue. The court also held that the revised insurance regulations, including EUOs, were inapplicable until the issuance of new or renewal policies containing the revised endorsement, and that the no-fault protection created by statute may not be qualified by the conditions of the liability portion of the insurance policy. Therefore, the court affirmed the order granting the plaintiff's motion for summary judgment.

Reported in New York Official Reports at West Tremont Med. Diagnostic, P.C. v Allstate Ins. Co. (2006 NY Slip Op 51374(U))

West Tremont Med. Diagnostic, P.C. v Allstate Ins. Co. (2006 NY Slip Op 51374(U)) [*1]

West Tremont Med. Diagnostic, P.C. v Allstate Ins. Co.

2006 NY Slip Op 51374(U) [12 Misc 3d 141(A)]

Decided on July 14, 2006

Appellate Term, First 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This opinion is uncorrected and will not be published in the printed Official Reports.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 July 14, 2006

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

PRESENT: McCOOE, J.P. DAVIS, GANGEL JACOB, JJ
570039/06.

West Tremont Medical Diagnostic, P.C. a/a/o Oneil Henry, Plaintiff-Respondent,
against
Allstate Insurance Company, Defendant-Appellant.

Defendant appeals from an order of the Civil Court, Bronx County (Julia I. Rodriguez, J.), dated October 11, 2005, which granted plaintiff’s motion for summary judgment.

PER CURIAM:

Order (Julia I. Rodriguez, J.) dated October 31, 2005, affirmed, with $10 costs.

Plaintiff, a health care provider seeking to recover no-fault benefits for services rendered to its assignor, established a prima facie entitlement to summary judgment by proof that it submitted its claim form setting forth the fact and the amount of the loss and that payment of benefits was overdue (see Insurance Law § 5106[a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). In opposition, defendant failed to raise a triable issue of fact since its submissions did not establish that the insurance policy in effect contained an endorsement authorizing examinations under oath (EUO) pursuant to 11 NYCRR 65-1.1(d). While plaintiff’s claim was submitted after the effective date of the revised insurance regulations which include EUOs in the Mandatory Personal Injury Protection Endorsement, the provisions of the revised regulations are inapplicable until the issuance of new or renewal policies containing the revised endorsement (see SZ Med. Servs. P.C. v State Farm Mut. Auto. Ins. Co., 9 Misc 3d 139[A][2005]). Nor may defendant base its right to an EUO on the provisions of the policy requiring the claimant’s “cooperation” because the no-fault protection created by statute may not be qualified by the conditions of the liability portion of the insurance policy (see Utica Mut. Ins. Co. v Timms, 293 AD2d 669, 670 [2002], lv dismissed 98 NY2d 727 [2002]).

This constitutes the decision and order of the court.
Decision Date: July 14, 2006