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Morris Medical, P.C. As Assignee of Orsini Fernandez v. Amex Assurance Company

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


December 7, 2012

MORRIS MEDICAL, P.C. AS ASSIGNEE OF ORSINI FERNANDEZ,
RESPONDENT,
v.
AMEX ASSURANCE COMPANY,
APPELLANT.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), dated August 17, 2010, deemed from a judgment of the same court entered September 13, 2010 (see CPLR 5512 [a]).

Morris Med., 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This opinion is uncorrected and will not be published in the printed Official Reports.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 judgment, entered pursuant to the August 17, 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 $3,759.59.

ORDERED that the judgment is reversed, without costs, so much of the order dated August 17, 2010 as granted the branches of plaintiff's motion seeking summary judgment with respect to its claims for $297.57, $365.17, $241.53, $177.71, $270.40 and $42.51 and denied the branches of defendant's cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon those claims is vacated, the branches of plaintiff's motion seeking summary judgment with respect to those claims are denied and the branches of defendant's cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon those claims are granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order dated August 17, 2010 which granted plaintiff's motion for summary judgment and denied defendant's cross motion for summary judgment dismissing the complaint. The Civil Court found that plaintiff had established its prima facie entitlement to summary judgment and that defendant had failed to establish the reasonableness of its requests for examinations under oath (EUOs). A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5512 [a]).

With respect to plaintiff's claims for $840.05, $451.38, $348.80, $202.80 and $521.68, it is undisputed that these claims were not paid or denied within 30 days of their receipt (see Insurance Department Regulations [11 NYCRR] § 65-3.8 [a] [1]). Nor does defendant claim that EUOs were requested or pending during that time. Consequently, defendant failed to demonstrate that these five 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]). As defendant raises no issue on appeal with regard to the Civil Court's determination that plaintiff established its prima facie case, we do not pass upon the propriety of the Civil Court's determination with respect thereto. As a result, we do not disturb so much of the order as awarded plaintiff summary judgment with respect to these claims.

As to the remaining claims, which sought to recover the sums of $297.57, $365.17, $241.53, $177.71, $270.40 and $42.51, defendant established that the time to pay or deny these claims 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 these claims 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 had 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, plaintiff is not entitled to summary judgment with respect to its claims for the sums of $297.57, $365.17, $241.53, $177.71, $270.40 and $42.51, and defendant is entitled to summary judgment dismissing so much of the complaint as sought to recover upon these claims.

Accordingly, the judgment is reversed, so much of the order dated August 17, 2010 as granted the branches of plaintiff's motion seeking summary judgment with respect to its claims for $297.57, $365.17, $241.53, $177.71, $270.40 and $42.51 and denied the branches of defendant's cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon those claims is vacated, the branches of plaintiff's motion seeking summary judgment with respect to those claims are denied and the branches of defendant's cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon those claims are granted.

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

20121207

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