November 9, 2018

Gentlecare Ambulatory Anesthesia Servs. v Allstate Ins. Co. (2018 NY Slip Op 51607(U))

Headnote

The court considered an action by a provider to recover assigned first-party no-fault benefits. The main issue was whether the provider had failed to appear for duly scheduled examinations under oath (EUOs), which would justify the denial of the claim. The court held that the affidavits submitted by the defendant did not sufficiently demonstrate that the denial of the claim form had been timely mailed, and therefore, the defendant was not entitled to summary judgment. However, the affidavit submitted by the plaintiff failed to establish that the claim at issue had not been timely denied or that the denial of claim was conclusory, vague, or without merit as a matter of law. Therefore, the plaintiff's motion for summary judgment was properly denied. Ultimately, the court modified the order by providing that defendant's cross motion for summary judgment dismissing the complaint was denied.

Reported in New York Official Reports at Gentlecare Ambulatory Anesthesia Servs. v Allstate Ins. Co. (2018 NY Slip Op 51607(U))

Gentlecare Ambulatory Anesthesia Servs. v Allstate Ins. Co. (2018 NY Slip Op 51607(U)) [*1]

Gentlecare Ambulatory Anesthesia Servs. v Allstate Ins. Co.

2018 NY Slip Op 51607(U) [61 Misc 3d 140(A)]

Decided on November 9, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 9, 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
2016-1957 Q C

Gentlecare Ambulatory Anesthesia Services; Lyonel F. Paul, M.D., as Assignee of Joanis, Ron Anthony, Appellant,
against
Allstate Insurance Company, Respondent.

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Sweetbaum & Sweetbaum, Esqs. (Joel A. Sweetbaum of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Terrence C. O’Connor, J.), entered December 8, 2015. 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 had failed to appear for duly scheduled examinations under oath (EUOs).

Plaintiff correctly argues on appeal that the affidavits submitted by defendant did not sufficiently set forth a standard office practice or procedure that would ensure that the denial of claim form had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). As defendant did not demonstrate that it is not precluded from asserting its proffered defense—that plaintiff had failed to appear for duly scheduled EUOs—defendant is not entitled to summary judgment dismissing the complaint.

However, contrary to plaintiff’s contention, the affidavit plaintiff submitted in support of its motion failed to establish that the claim at issue had not been timely denied (see Viviane [*2]Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant had issued a timely denial of claim 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]). As a result, plaintiff’s motion for summary judgment was properly denied.

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 09, 2018