Reported in New York Official Reports at Maiga Prods. Corp. v State Farm Mut. Auto. Ins. Co. (2018 NY Slip Op 51763(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
State Farm Mutual Automobile Ins. Co., Appellant.
Rivkin Radler, LLP (Stuart M. Bodoff and Cheryl F. Korman of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered January 21, 2016. The order, insofar as appealed from, denied defendant’s motion for summary judgment dismissing the complaint.
ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is granted.
In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs). By order entered January 21, 2016, the Civil Court denied the motion, but found, in effect pursuant to CPLR 3212 (g), that defendant had established the timely and proper mailing of the EUO scheduling letters and the denial of claim forms, as well as plaintiff’s failure to appear for the EUOs. The Civil Court stated, insofar as is relevant to this appeal, that there was an issue of fact “as to how the bill is received, where it is received and date stamped and the nexus to the Ballston Spa office from Atlanta, GA.” As limited by its brief, defendant appeals from so much of the order as denied its motion for summary judgment dismissing the complaint.
To establish its prima facie entitlement to summary judgment dismissing a complaint on the ground that a provider had failed to appear for an EUO, an insurer must demonstrate, as a matter of law, that it had twice duly demanded an EUO from the provider, that the provider had [*2]twice failed to appear, and that the insurer had issued a timely denial of the claims (see Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2014]; Integrative Pain Medicine, P.C. v Praetorian Ins. Co., 53 Misc 3d 140[A], 2016 NY Slip Op 51520[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]). Plaintiff challenges the Civil Court’s implicit CPLR 3212 (g) finding that the first EUO scheduling letter had been timely mailed, arguing that the individual who executed the affidavit of mailing of the EUO scheduling letters did not demonstrate knowledge of the practices and procedures for receipt of the claim forms, which had been mailed to defendant’s office in Atlanta, Georgia. Plaintiff also challenges the Civil Court’s implicit CPLR 3212 (g) finding that defendant established plaintiff’s failure to appear for the EUOs. A review of the record establishes that the Civil Court correctly determined that defendant had established plaintiff’s failure to appear for the EUO. Moreover, defendant’s practices and procedures regarding the receipt of its mail are irrelevant (see Maiga Prods. Corp. v State Farm Mut. Auto. Ins. Co., 59 Misc 3d 145[A], 2018 NY Slip Op 50736[U] [App Term, 2d, 11th & 13th Jud Dists 2018]). Finally, plaintiff argues that it raised a triable issue of fact. Since that argument lacks merit, the Civil Court should have granted defendant’s motion for summary judgment.
Accordingly, the order, insofar as appealed from, is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.
PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 30, 2018
Reported in New York Official Reports at Oriental Health Acupuncture, P.C. v 21st Century Ins. Co. (2018 NY Slip Op 51761(U))
| Oriental Health Acupuncture, P.C. v 21st Century Ins. Co. |
| 2018 NY Slip Op 51761(U) |
| Decided on November 30, 2018 |
| 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 November 30, 2018
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2016-268 Q C
against
21st Century Insurance Company, Respondent.
The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Law Offices of Buratti, Rothenberg & Burns (Sharon A. Brennan of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Terrence C. O’Connor, J.), entered December 22, 2015. The order granted 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, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment on the ground that plaintiff’s assignor had failed to appear for examinations under oath (EUOs).
Plaintiff correctly contends that the letters annexed to defendant’s motion as Exhibit “C” were delay letters which failed to toll defendant’s time to pay or deny the claims. However, defendant’s motion also included copies of the EUO scheduling letters mailed by the law firm retained by defendant to conduct the EUOs, and plaintiff has raised no issue with respect to the sufficiency of those letters (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Great Health Care Chiropractic, P.C. v Nationwide Ins., 46 Misc 3d 130[A], 2014 NY Slip Op 51812[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]).
In view of the foregoing, and since plaintiff’s remaining contention lacks merit, plaintiff has provided no basis upon which to reverse the order.
Accordingly, the order is affirmed.
PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 30, 2018
Reported in New York Official Reports at Stracar Med. Servs. v State Farm Mut. Auto. Ins. Co. (2018 NY Slip Op 51759(U))
| Stracar Med. Servs. v State Farm Mut. Auto. Ins. Co. |
| 2018 NY Slip Op 51759(U) |
| Decided on November 30, 2018 |
| 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 November 30, 2018
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2015-2637 K C
against
State Farm Mutual Automobile Ins. Co., Respondent.
Gary Tsirelman, P.C. (Stefan Belinfanti of counsel), for appellant. Rivkin Radler, LLP (Stuart M. Bodoff and Cheryl F. Korman of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Theresa M. Ciccotto, J.), entered June 4, 2015. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.
ORDERED that the order is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs) and denied plaintiff’s cross motion for summary judgment. This case involves 17 bills which had been received by defendant between November 18, 2011 and July 20, 2012.
Plaintiff does not dispute that a letter scheduling its EUO was mailed to plaintiff on December 13, 2011, or that a follow-up scheduling letter was timely mailed. Contrary to plaintiff’s main contention on appeal, once that initial letter was mailed to plaintiff, the toll of defendant’s time to pay or deny plaintiff’s claims applied to any claim form submitted by plaintiff for the same assignor and accident subsequent to that request, but before plaintiff breached a policy condition by failing to appear for two properly scheduled EUOs (see ARCO Med. NY, P.C. v Lancer Ins. Co., 34 Misc 3d 134[A], 2011 NY Slip Op 52382[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]), in this case, the four claim forms defendant received on December 14, [*2]2011.
While plaintiff notes that the first EUO scheduling letter was mailed 16 business days after defendant’s receipt of two bills on November 18, 2011, which is one day later than is set forth in the Insurance Department Regulations (11 NYCRR 65-3.5 [b]) for the time to seek verification, it fails to explain why this should result in even the partial denial of defendant’s motion, since the denial of claim forms with respect to those two bills were mailed 21 days after plaintiff’s failure to appear for the second EUO (see 11 NYCRR 65-3.8 [l] [providing that deviations from the verification time frames reduce the 30 days to pay or deny the claim by the same number of days that the verification request was late]).
Plaintiff’s remaining contentions are without merit.
Accordingly, the order is affirmed.
PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 30, 2018
Reported in New York Official Reports at Ortho Passive Motion, Inc. v Allstate Ins. Co. (2018 NY Slip Op 51749(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
against
Allstate Insurance Company, Appellant.
Peter C. Merani, P.C. (Eric M. Wahrburg and Adam Kass of counsel), for appellant. Israel, Israel & Purdy, LLP (Ryan B. Berry of counsel), for respondent.
Appeal from an order of the District Court of Nassau County, Third District (Scott Fairgrieve, J.), dated March 1, 2017. The order, insofar as appealed from as limited by the brief, denied the branch of defendant’s motion seeking to modify a judgment of that court entered July 29, 2015, following a nonjury trial, awarding plaintiff the principal sum of $3,723.72.
ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.
In this action to recover assigned first-party no-fault benefits, defendant asserted, as an affirmative defense, that the insurance policy limits had been exhausted. At a nonjury trial, the District Court (Scott Fairgrieve, J.) noted that the parties had stipulated to, among other things, defendant’s timely denial of the claim at issue. Following the trial, a judgment was entered on July 29, 2015 awarding plaintiff the principal sum of $3,723.72. On November 7, 2016, defendant moved, insofar as is relevant to this appeal, pursuant to CPLR 5019 (a) and 5240, among others, to modify the judgment on the ground that the coverage limits of the insurance policy had been exhausted. Plaintiff opposed the motion. Defendant appeals from so much of an order of the District Court dated March 1, 2017 as denied the branch of defendant’s motion seeking to modify the judgment, citing CPLR 5240 as authority for its requested relief.
At the outset, we note that, although defendant did not deny the claim on the ground that the coverage limits of the insurance policy at issue had been exhausted, this defense is not [*2]precluded (see New York & Presbyt. Hosp. v Allstate Ins. Co., 12 AD3d 579 [2004]; Alleviation Med. Servs., P.C. v Allstate Ins. Co., 55 Misc 3d 44 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]).
In support of its motion, defendant argued that there are no funds available to pay the judgment because the $50,000 policy limit in basic personal injury protection had been exhausted. Assuming, arguendo, that such contention, if established, would entitle defendant to some form of postjudgment relief (see Hospital for Joint Diseases v Hertz Corp., 22 AD3d 724 [2005]), we find that, in any event, defendant’s motion papers failed to establish an exhaustion of the coverage limits of the insurance policy at issue, as defendant failed to demonstrate that the policy had been exhausted at the time the claims at issue had been deemed complete (see 11 NYCRR 65-3.15; Nyack Hosp. v General Motors Acceptance Corp., 8 NY3d 294 [2007]; Alleviation Med. Servs., P.C., 55 Misc 3d 44). Consequently, defendant has established no basis to modify the judgment.
Accordingly, the order, insofar as appealed from, is affirmed
TOLBERT, J.P., BRANDS and RUDERMAN, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 29, 2018
Reported in New York Official Reports at Nova Chiropractic Servs., P.C. v GEICO Gen. Ins. Co. (2018 NY Slip Op 51703(U))
| Nova Chiropractic Servs., P.C. v GEICO Gen. Ins. Co. |
| 2018 NY Slip Op 51703(U) [61 Misc 3d 147(A)] |
| Decided on November 23, 2018 |
| 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 November 23, 2018
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2017-710 K C
against
GEICO General Insurance Company, Appellant.
Law Office of Goldstein & Flecker (Lawrence J. Chanice of counsel), for appellant. Law Office of Emilia I. Rutigliano, P.C. (Emilia I. Rutigliano of counsel), for respondent.
Appeal from a judgment of the Civil Court of the City of New York, Kings County (Ingrid Joseph, J.), entered August 16, 2016. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $3,184.19.
ORDERED that the judgment is reversed, with $30 costs, and the matter is remitted to the Civil Court for a new trial.
At a nonjury trial of this action by a provider to recover assigned first-party no-fault benefits, the sole issue was the medical necessity of the services in question. The Civil Court precluded the testimony of defendant’s expert witness and granted plaintiff’s motion for a directed verdict. Defendant appeals from the judgment that was subsequently entered in favor of plaintiff in the principal sum of $3,184.19.
For the reasons stated in Nova Chiropractic Servs., P.C., as Assignee of Miguel A. Vizcaino v GEICO Gen. Ins. Co. (__ Misc 3d ___, 2018 NY Slip Op _____ [appeal No. 2016-1054 K C], decided herewith), the judgment is reversed and the matter is remitted to the Civil Court for a new trial.
PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 23, 2018
Reported in New York Official Reports at Sharp View Diagnostic Imaging, P.C. v GEICO Gen. Ins. Co. (2018 NY Slip Op 51702(U))
| Sharp View Diagnostic Imaging, P.C. v GEICO Gen. Ins. Co. |
| 2018 NY Slip Op 51702(U) [61 Misc 3d 147(A)] |
| Decided on November 23, 2018 |
| 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 November 23, 2018
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2017-590 K C
against
GEICO General Insurance Company, Appellant.
Law Office of Goldstein & Flecker (Lawrence J. Chanice of counsel), for appellant. Fuld & Karp, P.C. (Cheryl Scher of counsel), for respondent.
Appeal from a judgment of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered February 17, 2016. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $1,791.73.
ORDERED that the judgment is reversed, with $30 costs, and the matter is remitted to the Civil Court for a new trial.
At a nonjury trial of this action by a provider to recover assigned first-party no-fault benefits, the sole issue was the medical necessity of the services in question. The Civil Court precluded the testimony of defendant’s expert witness and granted plaintiff’s motion for a directed verdict. Defendant appeals from the judgment that was subsequently entered in favor of plaintiff in the principal sum of $1,791.73.
For the reasons stated in Nova Chiropractic Servs., P.C., as Assignee of Miguel A. Vizcaino v GEICO Gen. Ins. Co. (__ Misc 3d ___, 2018 NY Slip Op _____ [appeal No. 2016-1054 K C], decided herewith), the judgment is reversed and the matter is remitted to the Civil Court for a new trial.
PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 23, 2018
Reported in New York Official Reports at Nova Chiropractic Servs., P.C. v GEICO Gen. Ins. Co. (2018 NY Slip Op 51700(U))
| Nova Chiropractic Servs., P.C. v GEICO Gen. Ins. Co. |
| 2018 NY Slip Op 51700(U) [61 Misc 3d 146(A)] |
| Decided on November 23, 2018 |
| 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 November 23, 2018
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2016-1379 K C
against
GEICO General Insurance Company, Appellant.
Law Office of Goldstein & Flecker (Lawrence J. Chanice of counsel), for appellant. Law Offices of Emilia I. Rutigliano, P.C., for respondent (no brief filed).
Appeal from a judgment of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered February 8, 2016. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $873.96.
ORDERED that the judgment is reversed, with $30 costs, and the matter is remitted to the Civil Court for a new trial.
At a nonjury trial of this action by a provider to recover assigned first-party no-fault benefits, the sole issue was the medical necessity of the services in question. The Civil Court precluded the testimony of defendant’s expert witness and granted plaintiff’s motion for a directed verdict. Defendant appeals from the judgment that was subsequently entered in favor of plaintiff in the principal sum of $873.96.
For the reasons stated in Nova Chiropractic Servs., P.C., as Assignee of Miguel A. Vizcaino v GEICO Gen. Ins. Co. (__ Misc 3d ___, 2018 NY Slip Op _____ [appeal No. 2016-1054 K C], decided herewith), the judgment is reversed and the matter is remitted to the Civil Court for a new trial.
PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 23, 2018
Reported in New York Official Reports at Veraso Med. Supply Corp. v 21st Century Ins. Co. (2018 NY Slip Op 51698(U))
| Veraso Med. Supply Corp. v 21st Century Ins. Co. |
| 2018 NY Slip Op 51698(U) [61 Misc 3d 146(A)] |
| Decided on November 23, 2018 |
| 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 November 23, 2018
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2016-1227 K C
against
21st Century Insurance Company, Respondent.
The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Law Offices of Bryan M. Rothenberg (Sharon A. Brennan of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered March 10, 2016. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.
ORDERED that the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied; as so modified, the order is affirmed, without costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for examinations under oath.
For the reasons stated in Veraso Med. Supply Corp., as Assignee of Connor, John v 21st Century Ins. Co. (___ Misc 3d ____, 2018 NY Slip Op _____ [appeal No. 2016-1141 K C], decided herewith), the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied.
PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 23, 2018
Reported in New York Official Reports at Nova Chiropractic Servs., P.C. v GEICO Gen. Ins. Co. (2018 NY Slip Op 51697(U))
| Nova Chiropractic Servs., P.C. v GEICO Gen. Ins. Co. |
| 2018 NY Slip Op 51697(U) [61 Misc 3d 146(A)] |
| Decided on November 23, 2018 |
| 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 November 23, 2018
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2016-1221 K C
against
GEICO General Insurance Company, Appellant.
Law Office of Goldstein & Flecker (Lawrence J. Chanice of counsel), for appellant. Law Offices of Emilia I. Rutigliano, P.C., for respondent (no brief filed).
Appeal from a judgment of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered February 10, 2016. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $2,184.94.
ORDERED that the judgment is reversed, with $30 costs, and the matter is remitted to the Civil Court for a new trial.
At a nonjury trial of this action by a provider to recover assigned first-party no-fault benefits, the sole issue was the medical necessity of the services in question. The Civil Court precluded the testimony of defendant’s expert witness and granted plaintiff’s motion for a directed verdict. Defendant appeals from the judgment that was subsequently entered in favor of plaintiff in the principal sum of $2,184.94.
For the reasons stated in Nova Chiropractic Servs., P.C., as Assignee of Miguel A. Vizcaino v GEICO Gen. Ins. Co. (__ Misc 3d ___, 2018 NY Slip Op _____ [appeal No. 2016-1054 K C], decided herewith), the judgment is reversed and the matter is remitted to the Civil Court for a new trial.
PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 23, 2018
Reported in New York Official Reports at Veraso Med. Supply Corp. v 21st Century Ins. Co. (2018 NY Slip Op 51696(U))
| Veraso Med. Supply Corp. v 21st Century Ins. Co. |
| 2018 NY Slip Op 51696(U) [61 Misc 3d 146(A)] |
| Decided on November 23, 2018 |
| 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 November 23, 2018
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2016-1141 K C
against
21st Century Insurance Company, Respondent.
The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Law Offices of Bryan M. Rothenberg (Sharon A. Brennan of couunsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered March 9, 2016. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.
ORDERED that the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied; as so modified, the order is affirmed, without costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for examinations under oath (EUOs).
Plaintiff correctly argues that defendant’s cross motion failed to establish that defendant had timely denied plaintiff’s claim after plaintiff’s assignor had allegedly failed to appear at both an initial and a follow-up EUO. As defendant did not demonstrate that it is not precluded from raising its proffered defense (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2009]), defendant’s cross motion for summary judgment dismissing the complaint should have been denied.
Contrary to plaintiff’s further contention, plaintiff failed to establish its prima facie [*2]entitlement to summary judgment, as it failed to establish that the claim at issue had not been timely denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant had issued a timely denial of claim form that was conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).
Accordingly, the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied.
PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 23, 2018