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Essential Acupuncture Services, P.C. As Assignee of Orsini Fernandez, Respondent v. Amex Assurance Co.

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


December 7, 2012

ESSENTIAL ACUPUNCTURE SERVICES, P.C. AS ASSIGNEE OF ORSINI FERNANDEZ, RESPONDENT, --
v.
AMEX ASSURANCE CO., APPELLANT.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered August 17, 2010.

Essential Acupuncture Servs., P.C. v Amex Assur. 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This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 7, 2012

PRESENT: RIOS, J.P., ALIOTTA and SOLOMON, JJ

The order granted plaintiff's motion for summary judgment and denied defendant's cross motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that the branch of plaintiff's motion seeking summary judgment with respect to its claim for $556.90 is denied and the branch of defendant's cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon this claim is granted; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court which granted plaintiff's motion for summary judgment and denied defendant's cross motion for summary judgment dismissing the complaint.

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

As to the branches of defendant's cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for $979.59 and $612.59, defendant admits that it received the claims on August 6, 2007 and September 11, 2007, respectively, and it is undisputed that these claims had not been paid or denied within 30 days of their receipt (see Insurance Department Regulations [11 NYCRR] § 65-3.8 [a]). Nor does defendant claim that examinations under oath (EUOs) were requested or pending during that time. As a result, defendant failed to demonstrate that these claims had been timely denied and therefore it has not established that its defense -- that plaintiff failed to comply with a condition precedent to coverage -- is not precluded as to these claims (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045, 1046 [2d Dept 2009]; Arco Med. NY, P.C. v Lancer Ins. Co., ___ Misc 3d ___, 2012 NY Slip Op 22278 [App Term, 2d, 11th & 13th Jud Dists 2012]; cf. Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559 [1st Dept 2011]). Accordingly, we do not disturb so much of the order as granted the branch of plaintiff's motion seeking summary judgment with respect to these claims.

As to plaintiff's claim for $556.90, defendant established that the time to pay or deny this claim had been tolled by the timely issuance of EUO scheduling letters (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]), that plaintiff had failed to appear for either of the two properly scheduled EUOs (W & Z Acupuncture, P.C. v Amex Assur. Co., 24 Misc 3d 142[A], 2009 NY Slip Op 51732[U] [App Term, 2d, 11th & 13th Jud Dists 2009]), and that this claim had been timely denied (see Arco Med. NY, P.C., ___ Misc 3d ___, 2012 NY Slip Op 22278; 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]). Moreover, inasmuch as it is uncontroverted that plaintiff failed to respond, in any way, to defendant's requests for EUOs, the reasonableness of these requests will not be considered (see e.g. Westchester County Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 262 AD2d 553 [1999]; Eagle Surgical Supply, Inc. v AIG Ins. Co., 36 Misc 3d 153[A], 2012 NY Slip Op 51711[U] [App Term, 2d, 11th & 13th Jud Dists]; All Boro Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co., 36 Misc 3d 135[A], 2012 NY Slip Op 51346[U] [App Term, 2d, 11th & 13th Jud Dists 2012]; Crescent Radiology, PLLC v American Tr. Ins. Co., 31 Misc 3d 134[A], 2011 NY Slip Op 50622[U] [App Term, 9th & 10th Jud Dists 2011]; Urban Radiology, P.C. v Tri-State Consumer Ins. Co., 27 Misc 3d 140[A], 2010 NY Slip Op 50987[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). Consequently, defendant is entitled to summary judgment dismissing so much of the complaint as sought to recover upon plaintiff's $556.90 claim.

Accordingly, the order is modified by providing that the branch of plaintiff's motion seeking summary judgment with respect to its claim for $556.90 is denied and the branch of defendant's cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon that claim is granted.

Rios, J.P., Aliotta and Solomon, JJ., concur. Decision Date: December 07, 2012

20121207

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