October 29, 2020

Kemper Independence Ins. Co. v AB Med. Supply, Inc. (2020 NY Slip Op 06209)

Headnote

The court considered that the plaintiff, Kemper Independence Insurance Company, was seeking summary judgment to declare that it was not obligated to reimburse the defendants for no-fault claims submitted in connection with a motor vehicle accident. Kemper Independence Insurance Company failed to provide the injured claimant's assignees with specific objective justification for its request that the injured claimant submit to an examination under oath (EUO) to establish proof of claim. The main issue decided was that the plaintiff's motion for summary judgment was denied as premature as they did not provide the necessary justification for the request for an EUO. The holding of the case was that the motion for summary judgment was denied, and the appellate division affirmed the decision of the lower court.

Reported in New York Official Reports at Kemper Independence Ins. Co. v AB Med. Supply, Inc. (2020 NY Slip Op 06209)

Kemper Independence Ins. Co. v AB Med. Supply, Inc.

2020 NY Slip Op 06209 [187 AD3d 671]

October 29, 2020

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected through Wednesday, December 2, 2020

[*1]

Kemper Independence Insurance Company, Appellant,
v
AB Medical Supply, Inc., et al., Respondents, et al., Defendants.

Goldberg, Miller & Rubin, P.C., New York (Eli Shmulik of counsel), for appellant.

The Rybak Firm, PLLC, Brooklyn (Maksim Leyvi of counsel), for respondents.

Order, Supreme Court, New York County (Lynn R. Kotler, J.), entered on or about December 10, 2019, which denied as premature plaintiff’s motion for summary judgment declaring that it is not obligated to reimburse defendants-respondents for no-fault claims submitted in connection with a motor vehicle accident, unanimously affirmed, without costs.

Plaintiff no-fault insurer failed to provide the injured claimant’s assignees with the “specific objective justification” for its request that the injured claimant submit to an examination under oath (EUO) to establish proof of claim (11 NYCRR 65-3.5 [e]; see American Tr. Ins. Co. v Jaga Med. Servs., P.C., 128 AD3d 441 [1st Dept 2015]). As the criteria by which plaintiff determined that an EUO was required constitute facts unavailable to defendants for use in opposing plaintiff’s motion, the motion was premature (CPLR 3212 [f]). Moreover, as the court noted, plaintiff moved for summary judgment before any depositions had been conducted (see e.g. Blech v West Park Presbyt. Church, 97 AD3d 443 [1st Dept 2012]).

We have considered plaintiff’s remaining contentions and find them unavailing. Concur—Renwick, J.P., Gesmer, Kern, Singh, JJ.