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Infinity Health Products, Ltd. As Assignee of Jesus Encarnacion, Respondent v. Travelers Insurance Company

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


February 19, 2013

INFINITY HEALTH PRODUCTS, LTD. AS ASSIGNEE OF JESUS ENCARNACION, RESPONDENT,
v.
TRAVELERS INSURANCE COMPANY, APPELLANT.

Appeal from an order of the Civil Court of the City of New York, Queens County (Cheree A. Buggs, J.), entered February 17, 2011, deemed from a judgment of the same court entered March 1, 2011 (see CPLR 5501 [c]).

Infinity Health Prods., Ltd. v Travelers 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This opinion is uncorrected and will not be published in the printed Official Reports.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 February 19, 2013

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

The judgment, entered pursuant to so much of the February 17, 2011 order as granted the branch of plaintiff's motion seeking summary judgment on so much of the complaint as sought to recover upon a bill for $501.50 and denied the branch of defendant's cross motion seeking summary judgment dismissing that portion of the complaint, awarded plaintiff the principal sum of $501.50.

ORDERED that the judgment is reversed, with $30 costs, so much of the February 17, 2011 order as granted the branch of plaintiff's motion seeking summary judgment on so much of the complaint as sought to recover upon the bill for $501.50 and denied the branch of defendant's cross motion seeking summary judgment dismissing that portion of the complaint is vacated, that branch of plaintiff's motion is denied, and that branch of defendant's cross motion is granted.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint on the ground that all three bills at issue had been timely and properly denied based on plaintiff's failure to appear for scheduled examinations under oath (EUOs) on September 4, 2009 and September 23, 2009. The Civil Court granted the branches of defendant's motion seeking summary judgment dismissing so much of the complaint as sought to recover upon plaintiff's first two bills, implicitly finding that defendant had proved that the EUOs had been properly scheduled and that plaintiff had failed to appear. However, the Civil Court denied the branch of defendant's motion seeking summary judgment dismissing the complaint insofar as it sought to recover upon the last bill, for $501.50, on the ground that defendant had failed to issue two scheduling letters addressing the date of service for that bill.

The claim for $501.50 was denied by defendant within 30 days of its receipt (see Insurance Department Regulations [11 NYCRR] § 65-3.8 [a]; see also St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]) on the ground that plaintiff had failed to appear for the two properly scheduled EUOs that had been previously requested by defendant with regard to the same accident and the same assignor. Since defendant demonstrated that plaintiff had failed to comply with a condition precedent to coverage, this claim was timely and properly denied (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]). Contrary to the finding of the Civil Court, it was not necessary for defendant to issue new scheduling letters addressing this particular bill (id.).

Accordingly, the judgment is reversed, so much of the order as granted the branch of plaintiff's motion seeking summary judgment on so much of the complaint as sought to recover upon the bill for $501.50 and denied the branch of defendant's cross motion seeking summary judgment dismissing that portion of the complaint is vacated, that branch of plaintiff's is denied, and that branch of defendant's cross motion is granted.

Pesce, P.J., Rios and Solomon, JJ., concur. Decision Date: February 19, 2013

20130219

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