November 23, 2018

Veraso Med. Supply Corp. v 21st Century Ins. Co. (2018 NY Slip Op 51696(U))

Headnote

The court considered the fact that the plaintiff, a medical supply company, was seeking to recover first-party no-fault benefits as the assignee of a patient who failed to appear for required examinations under oath. The main issue decided was whether the defendant insurance company could deny the claim based on the assignor's failure to attend the EUOs. The court held that the defendant's cross motion for summary judgment dismissing the complaint should have been denied as the defendant failed to demonstrate that it was not precluded from raising its defense. Additionally, the court found that the plaintiff failed to establish its entitlement to summary judgment, as it did not prove that the claim had not been timely denied, or that the denial of claim form issued by the defendant was conclusory, vague, or without merit as a matter of law. Therefore, the court modified the order by denying the defendant's cross motion for summary judgment.

Reported in New York Official Reports at Veraso Med. Supply Corp. v 21st Century Ins. Co. (2018 NY Slip Op 51696(U))

Veraso Med. Supply Corp. v 21st Century Ins. Co. (2018 NY Slip Op 51696(U)) [*1]

Veraso Med. Supply Corp. v 21st Century Ins. Co.

2018 NY Slip Op 51696(U) [61 Misc 3d 146(A)]

Decided on November 23, 2018

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This opinion is uncorrected and will not be published in the printed Official Reports.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 November 23, 2018

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

PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2016-1141 K C

Veraso Medical Supply Corp., as Assignee of Connor, John, Appellant,
against
21st Century Insurance Company, Respondent.

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Law Offices of Bryan M. Rothenberg (Sharon A. Brennan of couunsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered March 9, 2016. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for examinations under oath (EUOs).

Plaintiff correctly argues that defendant’s cross motion failed to establish that defendant had timely denied plaintiff’s claim after plaintiff’s assignor had allegedly failed to appear at both an initial and a follow-up EUO. As defendant did not demonstrate that it is not precluded from raising its proffered defense (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2009]), defendant’s cross motion for summary judgment dismissing the complaint should have been denied.

Contrary to plaintiff’s further contention, plaintiff failed to establish its prima facie [*2]entitlement to summary judgment, as it failed to establish that the claim at issue had not been timely denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant had issued a timely denial of claim form that was conclusory, vague or without merit as a matter of law (see 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 is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 23, 2018