October 11, 2019

21st Century Pharm., Inc. v Ameriprise Ins. Co. (2019 NY Slip Op 51629(U))

Headnote

The main issue in this case was whether the insurance company was required to provide objective reasons for requesting examinations under oath (EUOs) in order to establish its prima facie entitlement to summary judgment. The Court held that the insurance company was not required to provide objective reasons for requesting EUOs, as they only need to demonstrate, as a matter of law, that they twice duly demanded an EUO from the provider, the provider twice failed to appear, and the insurer issued a timely denial of the claim. Therefore, the Court affirmed the order granting the insurance company's motion for summary judgment dismissing the complaint, which had been denied in a previous order.

Reported in New York Official Reports at 21st Century Pharm., Inc. v Ameriprise Ins. Co. (2019 NY Slip Op 51629(U))

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

21st Century Pharmacy, Inc., as Assignee of Christine Parkash, Appellant,
against
Ameriprise Insurance Company, Respondent.

Zara Javakov, P.C. (Zara Javakov of counsel), for appellant. Bruno, Gerbino & Soriano, LLP (Nathan Shapiro 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 March 2, 2018. The order, insofar as appealed from as limited by the brief, upon reargument, granted defendant’s motion for summary judgment dismissing the complaint, which had been denied in an order of that court entered December 9, 2016.

ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals, as limited by the brief, from so much of an order of the Civil Court as, upon reargument, granted defendant’s motion for summary judgment dismissing the complaint, which had been denied in an order of that court entered December 9, 2016.

Contrary to plaintiff’s contention, defendant was not required to set forth objective reasons for requesting examinations under oath (EUOs) in order to establish its prima facie entitlement to summary judgment, as an insurer need only demonstrate “as a matter of law that it twice duly demanded an [EUO] from the [provider] . . . that the [provider] twice failed to appear, and that the [insurer] issued a timely denial of the claim[]” (Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2014]; see Parisien v Metlife Auto & Home, 54 Misc 3d 143[A], 2017 NY Slip Op 50208[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; Palafox PT, P.C. v State Farm Mut. Auto. Ins. Co., 49 Misc 3d 144[A], 2015 NY Slip Op 51653[U] [App Term, 2d Dept, [*2]2d, 11th & 13th Jud Dists 2015]).

Accordingly, the order, insofar as appealed from, is affirmed.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: October 11, 2019