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Parsons Medical Supply, Inc. As Assignee of Marlon Mcleod v. Utica Mutual Ins. Co

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


December 21, 2012

PARSONS MEDICAL SUPPLY, INC. AS ASSIGNEE OF MARLON MCLEOD,
RESPONDENT,
v.
UTICA MUTUAL INS. CO.,
APPELLANT.

Appeal from an order of the Civil Court of the City of New York, Kings County (Dawn Jimenez Salta, J.), entered October 16, 2009.

Parsons Med. Supply, Inc. v Utica Mut. Ins. 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This opinion is uncorrected and will not be published in the printed Official Reports.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

PRESENT: PESCE, P.J., WESTON and RIOS, JJ

The order denied defendant's motion for summary judgment dismissing the complaint.

ORDERED that 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 denied defendant's motion for summary judgment dismissing the complaint.

In support of its motion, defendant was required, but failed, to demonstrate that its initial and follow-up requests for examinations under oath (EUOs) of plaintiff had been timely sent (see Insurance Department Regulations [11 NYCRR] §§ 65-3.5 [b]; 65-3.6 [b]). Since defendant failed to establish that it had tolled its time to pay or deny plaintiff's claims, and, thus, that it is not precluded from raising its proffered defense that plaintiff's principal failed to appear for an EUO (see Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 282 [1997]; Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2009]), defendant is not entitled to summary judgment dismissing the complaint (see NYU-Hosp. for Joint Diseases v American Intl. Group, Inc., 89 AD3d 702 [2011]; Westchester Med. Ctr., 60 AD3d 1045).

Accordingly, the order is affirmed.

Pesce, P.J., Weston and Rios, JJ., concur. Decision Date: December 21, 2012

20121221

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