Opinion
No. 2011–1294 K C.
2013-02-19
COMPAS MEDICAL, P.C. as Assignee of Christian Spiecher, Appellant–Respondent, v. FARM FAMILY CASUALTY INS. CO., Respondent–Appellant.
Present: PESCE, P.J., RIOS and SOLOMON, JJ.
Appeal and cross appeal from an order of the Civil Court of the City of New York, Kings County (Dawn Jimenez Salta, J.), entered March 31, 2011. The order, insofar as appealed from by plaintiff, denied plaintiff's motion for summary judgment. The order, insofar as cross-appealed from by defendant, denied defendant's cross motion for, among other things, summary judgment dismissing the complaint.
ORDERED that the order is modified by providing that plaintiff's motion for summary judgment is granted; as so modified, the order is affirmed, with $25 costs to plaintiff, and the matter is remitted to the Civil Court for a calculation of statutory interest and an assessment of attorney's fees.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from so much of an order of the Civil Court as denied plaintiff's motion for summary judgment upon the complaint's 10 causes of action, and defendant cross-appeals from so much of the order as denied its cross motion for, among other things, summary judgment dismissing the complaint.
In support of its motion seeking summary judgment, plaintiff submitted an affidavit by its president which established that the claim forms had been mailed to defendant ( see St. Vincent's Hosp. of Richmond v. Government Empls. Ins. Co., 50 AD3d 1123 [2008];Delta Diagnostic Radiology, P.C. v. Chubb Group of Ins., 17 Misc.3d 16 [App Term, 2d & 11th Jud Dists 2007] ). The affidavit also established proof of the fact and the amount of the loss sustained, by demonstrating that the claim forms annexed to plaintiff's motion were admissible pursuant to CPLR 4518 ( see Art of Healing Medicine, P.C. v. Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008];Dan Med., P.C. v. New York Cent. Mut. Fire Ins. Co., 14 Misc.3d 44 [App Term, 2d & 11th Jud Dists 2006] ).
As to plaintiff's first, second, third, fifth, sixth, seventh, eighth, and ninth causes of action, the papers submitted by defendant in support of its cross motion showed that the denials of these claims, which were based on plaintiff's assignor's failure to appear for duly scheduled examinations under oath (EUOs), were untimely ( see Insurance Department Regulations [11 NYCRR] § 65–3 .8[a][1] ). Consequently, as to these claims, defendant is precluded from asserting its defense that there had been a failure to appear for EUOs ( see Westchester Med. Ctr. v. Lincoln Gen. Ins. Co., 60 AD3d 1045 [2d Dept 2009], lv denied13 NY3d 714 [2009]; but see Unitrin Advantage Ins. Co. v. Bayshore Physical Therapy, PLLC, 82 AD3d 559 [1st Dept 2011], lv denied17 NY3d 705 [2011] ).
As to plaintiff's fourth and tenth causes of action, defendant's mere denial of receipt of those claims was insufficient to rebut the presumption of receipt established by plaintiff's proof of mailing ( see Top Choice Med., P.C. v. GEICO Gen. Ins. Co., 33 Misc.3d 137[A], 2011 N.Y. Slip Op 52063[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; A.B. Med. Servs. PLLC v. Motor Veh. Acc. Indem. Corp., 6 Misc.3d 131[A], 2005 N.Y. Slip Op 50088[U] [App Term, 2d & 11th Jud Dists 2005] ). Thus, defendant failed to raise a triable issue of fact as to these two claims.
Defendant's remaining contentions lack merit.
Accordingly, the order is modified by providing that plaintiff's motion for summary judgment is granted, and the matter is remitted to the Civil Court for a calculation of statutory interest and an assessment of attorney's fees pursuant to Insurance Law § 5106(a) and the regulations promulgated thereunder.