June 6, 2016

New Way Med. Supply Corp. v American Tr. Ins. Co. (2016 NY Slip Op 50917(U))

Headnote

The court considered the plaintiff's motion for summary judgment and the defendant's cross motion for summary judgment in a dispute over first-party no-fault benefits. The main issue decided was whether the defendant had timely and properly denied the claim based on the plaintiff's assignor's failure to appear for examinations under oath (EUOs). The court held that while the defendant had timely mailed the EUO scheduling letters, they had failed to submit proof by someone with personal knowledge of the nonappearance of the plaintiff's assignor for the EUOs, establishing their entitlement to summary judgment. The court also held that the plaintiff's moving papers failed to establish that the defendant had failed to deny the claim within the requisite 30-day period, or that the defendant had issued a timely denial of claim that was conclusory, vague, or without merit as a matter of law, therefore the plaintiff did not establish their entitlement to summary judgment. Therefore, the court affirmed the order but modified it to deny the defendant's cross motion for summary judgment dismissing the complaint.

Reported in New York Official Reports at New Way Med. Supply Corp. v American Tr. Ins. Co. (2016 NY Slip Op 50917(U))

New Way Med. Supply Corp. v American Tr. Ins. Co. (2016 NY Slip Op 50917(U)) [*1]

New Way Med. Supply Corp. v American Tr. Ins. Co.

2016 NY Slip Op 50917(U) [52 Misc 3d 128(A)]

Decided on June 6, 2016

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This opinion is uncorrected and will not be published in the printed Official Reports.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 June 6, 2016

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-2060 Q C

New Way Medical Supply Corp., as Assignee of ISABEL TUAPANTA, Appellant,
against
American Transit Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Barry A. Schwartz, J.), entered August 13, 2013. 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 moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint on the ground that it had timely and properly denied the claim based on plaintiff’s assignor’s failure to appear for examinations under oath (EUOs). The Civil Court denied plaintiff’s motion and granted defendant’s cross motion.

Although defendant established that the EUO scheduling letters had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]), defendant failed to submit proof by someone with personal knowledge of the nonappearance of plaintiff’s assignor for the EUOs in question (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). As a result, defendant failed to establish its prima facie entitlement to summary judgment.

Plaintiff’s moving papers failed to establish either that defendant had failed to deny the claim within the requisite 30-day period (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 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]). Thus, plaintiff did not establish its prima facie entitlement to summary judgment.

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 Solomon, JJ., concur.

Decision Date: June 06, 2016