Tsatskis v Travelers Ins. Co. (2020 NY Slip Op 51323(U))

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Law Office of Aloy O. Ibuzor (William P. Kleen of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Harriet L. Thompson, J.), entered February 28, 2018. The order, insofar as appealed from as limited by the brief, granted the branches of defendant’s motion seeking summary judgment dismissing the second through ninth causes of action and denied the branches of plaintiff’s cross motion seeking summary judgment upon those causes of action.

ORDERED that the order, insofar as appealed from, is modified by providing that the branches of defendant’s motion seeking summary judgment dismissing the second through ninth causes of action are denied; as so modified, the order, insofar as appealed from, is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint, asserting, insofar as is relevant to this appeal, that it had not received the claims underlying the second, third, and sixth through ninth causes of action, and that with respect to the fourth and fifth causes of action, plaintiff had not complied with a condition precedent to coverage because he had failed to appear for duly scheduled examinations under oath (EUOs). Plaintiff cross-moved for summary judgment. By order entered February 28, 2018, the Civil Court, insofar as is relevant to this appeal, granted the branches of defendant’s motion seeking summary judgment dismissing the second through ninth causes of action and denied the branches of plaintiff’s cross motion seeking summary judgment upon those causes of action.

The affidavit of defendant’s claims litigation representative established that defendant had [*2]not received the claim forms underlying the second, third, and sixth through ninth causes of action. However, in opposition to the motion, plaintiff submitted an affidavit from plaintiff’s owner, which affidavit was sufficient to give rise to a presumption that those claim forms had been timely mailed to, and received by, defendant (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; see also Compas Med., P.C. v New York Cent. Mut. Fire Ins. Co., 50 Misc 3d 146[A], 2016 NY Slip Op 50307[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]). In light of the foregoing, there is a triable issue of fact as to whether those claims were timely submitted to defendant.

Plaintiff correctly argues that defendant failed to demonstrate that it was entitled to summary judgment dismissing the fourth and fifth causes of action based on plaintiff’s failure to appear for EUOs, as the initial EUO request had been sent more than 30 days after defendant had received the claims underlying those causes of action, and, therefore, the request was a nullity as to those claims (see Neptune Med. Care, P.C. v Ameriprise Auto & Home Ins., 48 Misc 3d 139[A], 2015 NY Slip Op 51220[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; O & M Med., P.C. v Travelers Indem. Co., 47 Misc 3d 134[A], 2015 NY Slip Op 50476[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). However, plaintiff failed to demonstrate its prima facie entitlement to summary judgment on these causes of action, as the proof submitted in support of its motion failed to establish either that the claims had not been timely denied or that defendant had issued timely denial of claim forms that were conclusory, vague or without merit as a matter of law (see Insurance Law § 5106 [a]; Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).

Accordingly, the order, insofar as appealed from, is modified by providing that the branches of defendant’s motion seeking summary judgment dismissing the second through ninth causes of action are denied.

ALIOTTA, P.J., ELLIOT and SIEGAL, JJ., concur.