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Concourse Chiropractic, Pllc As Assignee of Darrell Coleman v. Fiduciary Insurance Company of America

New York Supreme and/or Appellate Courts SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS


June 11, 2012

CONCOURSE CHIROPRACTIC, PLLC AS ASSIGNEE OF DARRELL COLEMAN,
RESPONDENT,
v.
FIDUCIARY INSURANCE COMPANY OF AMERICA,
APPELLANT.

Appeal from an order of the Civil Court of the City of New York, Queens County (Cheree A. Buggs, J.), entered September 14, 2010, deemed from a judgment of the same court entered September 21, 2010 (see CPLR 5501 [c]).

Concourse Chiropractic, PLLC v Fiduciary Ins. Co. of Am.

Decided on June 11, 2012

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This opinion is uncorrected and will not be published in the printed Official Reports.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

The judgment, entered pursuant to the September 14, 2010 order granting plaintiff's motion for summary judgment and denying defendant's cross motion for summary judgment dismissing the complaint, awarded plaintiff the principal sum of $1,310.94.

ORDERED that the judgment is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order which granted plaintiff's motion for summary judgment and denied defendant's cross motion for summary judgment dismissing the complaint. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

The record establishes that, on December 2, 2008, defendant requested that plaintiff's assignor appear for an examination under oath (EUO) on January 8, 2009. Plaintiff's assignor failed to appear for the EUO. However, defendant did not mail a second request until February 12, 2009. As this follow-up request was untimely (see Insurance Department Regulations [11 NYCRR] § 65-3.6 [b]), defendant failed to toll the 30-day claim determination period (Insurance Department Regulations [11 NYCRR] § 65-3.8 [a] [1]), and, as a result, defendant's denial of plaintiff's claim was untimely. Consequently, the Civil Court properly denied defendant's cross motion for summary judgment, which was based upon the defense that plaintiff's assignor had failed to appear for an EUO. Inasmuch as defendant raises no issue on appeal with respect to plaintiff's prima facie case, we do not pass upon the propriety of the Civil Court's determination with respect thereto.

In light of the foregoing, we need not reach the parties' remaining contentions.

Accordingly, the judgment is affirmed. Pesce, P.J., Weston and Aliotta, JJ., concur. Decision Date: June 11, 2012

20120611

© 1992-2012 VersusLaw Inc.



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