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Boris Tsatskis, M.D. As Assignee of Yanarie Celestin v. State Farm Fire and Casualty Company

New York Supreme and/or Appellate Courts SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS


June 27, 2012

BORIS TSATSKIS, M.D. AS ASSIGNEE OF YANARIE CELESTIN,
RESPONDENT, --
v.
STATE FARM FIRE AND CASUALTY COMPANY, APPELLANT.

Appeal from a judgment of the District Court of Suffolk County, Third District (C. Stephen Hackeling, J.), entered May 13, 2010.

Tsatskis v State Farm Fire & Cas. Co.

Decided on June 27, 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This opinion is uncorrected and will not be published in the printed Official Reports.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: MOLIA, J.P., IANNACCI and LaSALLE, JJ

The judgment, entered pursuant to a March 29, 2010 order of the same court granting plaintiff's motion, pursuant to CPLR 4404 (b), to set aside a decision after trial and to direct the entry of judgment in plaintiff's favor, awarded plaintiff the principal sum of $7,156.23.

ORDERED that on the court's own motion, defendant's notice of appeal from the order entered March 29, 2010 is deemed a premature notice of appeal from the judgment (see CPLR 5520 [c]); and it is further,

ORDERED that the judgment is reversed, without costs, so much of the order entered March 29, 2010 as granted the branches of plaintiff's motion seeking to set aside the portion of the decision after trial that awarded defendant judgment dismissing plaintiff's 15th and 16th claims, and to direct the entry of judgment in plaintiff's favor on those claims, is vacated, those branches of plaintiff's motion are denied, judgment is directed to be entered dismissing those claims, and the matter is remitted to the District Court for the calculation of statutory interest and an assessment of attorney's fees on plaintiff's 1st through 14th claims and for the entry of judgment in plaintiff's favor on plaintiff's 1st through 14th claims.

In this action by a provider to recover assigned first-party no-fault benefits, a non-jury trial was held, limited by stipulation to defendant's defense that plaintiff's assignor had failed to appear for duly scheduled examinations under oath (EUOs) and to the issue of whether defendant's denials of plaintiff's 16 claims on that ground had been timely. In a decision after trial, the District Court awarded judgment in favor of defendant. Plaintiff moved, pursuant to CPLR 4404 (b), to set aside the decision and to direct the entry of judgment in favor of plaintiff or, in the alternative, for a new trial. The District Court granted the motion and directed the entry of judgment in favor of plaintiff on all 16 claims on the ground that defendant had failed to demonstrate that the insurance policy at issue contained an endorsement permitting EUOs.

As plaintiff essentially concedes on appeal, the District Court's basis for its determination lacks merit. Effective April 5, 2002, the mandatory personal injury endorsement contains a provision providing for EUOs (see Insurance Department Regulations [11 NYCRR] § 65-1.1 [b]). The accident in question occurred on March 29, 2008. Since the policy in this case would have been issued after 2002, it would necessarily have contained a provision for EUOs, and, thus, defendant was not required to produce the policy to establish the existence of such a provision (see Mega Supplies Billing, Inc. v State Farm Mut. Auto. Ins. Co., 33 Misc 3d 136[A], 2011 NY Slip Op 52023[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; Dover Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 28 Misc 3d 140[A], 2010 NY Slip Op 51605[U] [App Term, 1st Dept 2010]; Eagle Chiropractic, P.C. v Chubb Indem. Ins. Co., 19 Misc 3d 129[A], 2008 NY Slip Op 50525[U] [App Term, 9th & 10th Jud Dists 2008]). Indeed, "[e]ven if the insurance policy did not contain an EUO provision, the policy would be construed as though it did" (Mega Supplies Billing, Inc., 33 Misc 3d 136[A], 2011 NY Slip Op 52023[U], *1).

However, for the reasons set forth in plaintiff's motion papers and again in its brief on appeal, plaintiff is entitled to judgment on its first 14 claims. It is undisputed that the first request for an EUO was sent more than 30 days after defendant had received the first 13 claims at issue here. Thus, there was no tolling as to those claims and defendant's denials of those claims were untimely (see Insurance Department Regulations [11 NYCRR] § 65-3.5 [b]; St. Vincent Med. Care, P.C. v Travelers Ins. Co., 26 Misc 3d 144[A], 2010 NY Slip Op 50446[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). As to the 14th claim, while the request for the EUO was made within 30 days of the receipt of the claim, the denial of claim form was untimely (see Insurance Department Regulations [11 NYCRR] § 65-3.5 [b]; § 65-3.8 [j]). Consequently, as to the first 14 claims, defendant is precluded from asserting the defense of noncompliance with its requests for EUOs (see Insurance Department Regulations [11 NYCRR] § 65-3.5 [b]; § 65-3.8 [j]; St. Vincent Med. Care, P.C. v Travelers Ins. Co., 26 Misc 3d 144[A], 2010 NY Slip Op 50446[U]). Therefore, we leave undisturbed so much of the order as granted the branches of plaintiff's motion seeking to set aside the portion of the decision that awarded defendant judgment dismissing the first 14 claims, and for judgment in plaintiff's favor on those claims (see Parochial Bus Sys. v Board of Educ. of City of NY, 60 NY2d 539 [1983]).

However, as to plaintiff's 15th claim, dated July 21, 2008 for $127.10, defendant established that its time to pay or deny the claim had been tolled (see Insurance Department Regulations [11 NYCRR] § 65-3.5 [b]), and, thus, defendant's denial of this claim within 30 days of plaintiff's assignor's failure to appear for an EUO was timely. Finally, as to plaintiff's 16th claim, dated September 7, 2008 for $63.55, defendant's denial of claim form was sent within 30 days of receipt of the claim and so it was timely (see ARCO Med. NY, P.C. v Lancer Ins. Co., 34 Misc 3d 134[A], 2011 NY Slip Op 52382[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). We find that plaintiff's other arguments as to these two claims lack merit.

Accordingly, the judgment is reversed, so much of the order entered March 29, 2010 as granted the branches of plaintiff's motion seeking to set aside the portion of the decision after trial that awarded defendant judgment dismissing plaintiff's 15th and 16th claims, and to direct the entry of judgment in plaintiff's favor on those claims, is vacated, those branches of plaintiff's motion are denied, judgment is directed to be entered dismissing those claims, and the matter is remitted to the District Court for the calculation of statutory interest and an assessment of attorney's fees on plaintiff's 1st through 14th claims and for the entry of judgment in plaintiff's favor on plaintiff's 1st through 14th claims.

Molia, J.P., Iannacci and LaSalle, JJ., concur.

Decision

Date: June 27, 2012

20120627

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