Opinion
No. 2019-800 K C
08-12-2022
UGP Acupuncture, P.C., as Assignee of Fernandez-Genao, Veronica, Respondent, v. Metlife Auto & Home, Appellant.
Bruno, Gerbino. Soriano & Aitken, LLP (Nathan Shapiro of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent (no brief filed).
Unpublished Opinion
Bruno, Gerbino. Soriano & Aitken, LLP (Nathan Shapiro of counsel), for appellant.
The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent (no brief filed).
PRESENT: THOMAS P. ALIOTTA, P.J., WAVNY TOUSSAINT, DONNA-MARIE E. GOLIA, JJ
Appeal from an order of the Civil Court of the City of New York, Kings County (Richard J. Montelione, J.), entered December 31, 2018. The order, insofar as appealed from, upon reargument, adhered to that court's prior determination in an order dated November 2, 2017 denying the branches of defendant's motion seeking summary judgment dismissing the first and third through sixth causes of action.
ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and, upon reargument, the branches of defendant's motion seeking summary judgment dismissing the first and third through sixth causes of action are granted.
In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint and plaintiff cross-moved for summary judgment. By order dated November 2, 2017, the Civil Court, insofar as relevant to this appeal, denied the branches of defendant's motion seeking summary judgment dismissing the first and third through sixth causes of action. Defendant subsequently moved for leave to reargue the branches of its motion seeking summary judgment dismissing the first and third through sixth causes of action. By order entered December 31, 2018, the Civil Court granted the branch of defendant's motion seeking leave to reargue and, upon reargument, adhered to its prior determination.
To establish its prima facie entitlement to summary judgment dismissing a complaint on the ground that a provider's assignor had failed to appear for an examination under oath (EUO), an insurer must demonstrate, as a matter of law, that it had twice duly demanded an EUO from the assignor, that the assignor had twice failed to appear, and that the insurer had issued a timely denial of the claims (see Interboro Ins. Co. v Clennon, 113 A.D.3d 596, 597 [2014]; Parisien v Metlife Auto & Home, 54 Misc.3d 143 [A], 2017 NY Slip Op 50208[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; Palafox PT, P.C. v State Farm Mut. Auto. Ins. Co., 49 Misc.3d 144 [A], 2015 NY Slip Op 51653[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). A review of the record demonstrates that defendant's papers established proper mailing of the EUO scheduling letters and the denial of claim forms, as well as the failure of plaintiff's assignor to appear for the EUOs. As a result, defendant established its prima facie entitlement to summary judgment dismissing the complaint (see Interboro Ins. Co. v Clennon, 113 A.D.3d at 597). Defendant did not need to toll its time to pay or deny the claims at issue, as they were denied within 30 days of defendant's receipt of same, and the EUOs had been scheduled prior to defendant's receipt of these claims. Thus, contrary to the determination of the Civil Court, as the EUO scheduling letters were mailed prior to defendant's receipt of plaintiff's claims at issue, there is not an issue of fact with respect to whether the EUOs were scheduled in accordance with 11 NYCRR 65-3.5 (b) (see Excel Prods., Inc. v Ameriprise Auto & Home, 71 Misc.3d 136 [A], 2021 NY Slip Op 50435[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]; City Anesthesia Healthcare, P.C. v Erie Ins. Co. of NY, 70 Misc.3d 141 [A], 2021 NY Slip Op 50135[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]; 11 NYCRR 65-3.5 [a], [d]; Appendix 13). In view of the foregoing, plaintiff failed to raise a triable issue of fact in opposition to defendant's prima facie showing.
Accordingly, the order, insofar as appealed from, is reversed, and, upon reargument, the branches of defendant's motion seeking summary judgment dismissing the first and third through sixth causes of action are granted.
ALIOTTA, P.J., TOUSSAINT and GOLIA, JJ., concur.