Appeal from an order of the Civil Court of the City of New York, Kings County (Noach Dear, J.), entered February 19, 2009.
Urban Radiology, P.C. v Clarendon Natl. Ins. Co.
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This opinion is uncorrected and will not be published in the printed Official Reports.
PRESENT: STEINHARDT, J.P., PESCE and WESTON, JJ
The order, insofar as appealed from, denied defendant's cross motion for summary judgment dismissing the complaint.
ORDERED that the order, insofar as appealed from, is affirmed, without costs.In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court denied plaintiff's motion for summary judgment, as well as defendant's cross motion for summary judgment dismissing the complaint, finding that "issues of fact remain for trial as to the propriety of the defendant's denials and plaintiff's purported failure to appear for an EUO." This appeal by defendant ensued from so much of the order as denied its cross motion.
Defendant denied all of the claims at issue on the ground that the assignors had failed to attend scheduled examinations under oath (EUOs). In order for defendant to make a prima facie showing of its entitlement to summary judgment based on the assignors' failure to appear at scheduled EUOs, defendant had to demonstrate that its initial and follow-up requests for verification were timely mailed (see Insurance Department Regulations [11 NYCRR] § 65-3.5 [b]; § 65-3.6 [b]) and establish, by an affidavit of one with personal knowledge, that the assignors failed to appear for the EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 ; Advanced Med., P.C. v Utica Mut. Ins. Co., 23 Misc 3d 141[A], 2009 NY Slip Op 51023[U] [App Term, 2d, 11th & 13th Jud Dists 2009]).
In support of its cross motion, defendant submitted the affirmation of an attorney employed by the law office that defendant hired to schedule and conduct the EUOs. This affirmation, however, failed to establish a prima facie showing since it did not describe the law office's standard practices and procedures used to ensure that the verification requests were properly addressed and mailed (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 ; Residential Holding Corp. v Scottsdale Ins. Co. 286 AD2d 679 ; Advanced Med., P.C. v Utica Mut. Ins. Co., 23 Misc 3d 141[A], 2009 NY Slip Op 51023[U]). Consequently, the Civil Court properly denied defendant's cross motion for summary judgment. Accordingly, the order is affirmed insofar as appealed from.
Steinhardt, J.P., Pesce and Weston, JJ., concur.
Decision Date: April 05, 2011
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