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Arco Medical Ny, P.C. As Assignee of Isardat Jewdhan v. Lancer Insurance Company

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS


December 23, 2011

ARCO MEDICAL NY, P.C. AS ASSIGNEE OF ISARDAT JEWDHAN,
RESPONDENT,
v.
LANCER INSURANCE COMPANY,
APPELLANT.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin D. Garson, J.), entered August 19, 2009.

Arco Med. NY, P.C. v Lancer Ins. Co.

Decided on December 23, 2011

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This opinion is uncorrected and will not be published in the printed Official Reports.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: WESTON, J.P., GOLIA and RIOS, JJ

The order denied defendant's motion to compel plaintiff to produce Gracia Mayard, M.D., and Richard Berardi, D.O., for depositions, and granted plaintiff's cross motion for summary judgment.

ORDERED that the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved to compel plaintiff to produce Gracia Mayard, M.D., and Richard Berardi, D.O., two of plaintiff's principals, for depositions, and plaintiff cross-moved for summary judgment. Defendant opposed plaintiff's cross motion on the ground that it had timely denied plaintiff's claims after Dr. Mayard and Dr. Berardi had failed to appear for examinations under oath (EUOs). The Civil Court denied defendant's motion and granted plaintiff's cross motion.

Since defendant raises no issue on appeal with regard to plaintiff's establishment of a prima facie case, we do not pass upon the propriety of the Civil Court's implicit determination with respect thereto (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]).

Defendant demonstrated that it had properly requested that plaintiff's principals appear for an EUO, that they failed to appear for scheduled EUOs and that defendant issued a denial of claim form on April 11, 2007, within 30 days after their failure to appear (see Arco Med. NY, P.C. as Assignee of Isardat Jewdhan v Lancer Ins. Co., __ Misc 3d __, 2011 NY Slip Op _____ [Appeal No. 2009-2201 K C], decided herewith). However, the claims at issue in this case were submitted to defendant after it had issued that denial of claim form, and, thus, the April 11, 2007 denial is ineffective as to these claims (cf. Westchester Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 81 AD3d 929 [2011]; St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Defendant attached denial of claim forms to its opposition to plaintiff's cross motion which purport to address the claims at issue here, and which appear timely on their face, but defendant failed to submit evidence that it had mailed them. Since defendant failed to prove that it had timely denied the claims at issue, it is precluded from asserting most defenses, including its proffered defense that plaintiff failed to comply with a condition precedent to coverage (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2009], lv denied 13 NY3d 714 [2009]; but see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559 [2011], lv denied 17 NY3d 705 [2011]). Furthermore, defendant is not entitled to the depositions of Dr. Mayard and Dr. Berardi, as it only sought the depositions in order to obtain information regarding "treatment" and plaintiff's "billing practices," defenses which we find to be precluded (see A.B. Med. Servs. PLLC v Utica Mut. Ins. Co., 11 Misc 3d 71 [App Term, 2d & 11th Jud Dists 2006]; see also Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556 [2008]; Delta Diagnostic Radiology, P.C. v Republic W. Ins. Co., 15 Misc 3d 33 [App Term, 2d & 11th Jud Dists 2007]). Accordingly, defendant's motion was properly denied and plaintiff's cross motion for summary judgment was properly granted.

Weston, J.P., and Rios, J., concur.

Golia, J., taking no part.

Decision Date: December 23, 2011

20111223

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