September 16, 2015

New Quality Med., P.C. v Allstate Ins. Co. (2015 NY Slip Op 51405(U))

Headnote

The Court considered the issue of whether the denial of claim forms at issue were untimely, and if the defendant had established its entitlement to summary judgment by sending timely examination under oath (EUO) scheduling letters to the plaintiff. The main issue was whether the defendant had failed to establish its entitlement to summary judgment by failing to demonstrate that it had tolled its time to pay or deny the claims at issue by sending timely examination under oath scheduling letters to the plaintiff. The Court held that the EUO scheduling letters annexed in support of defendant's motion did not include the necessary information to establish as a matter of law that it had tolled its time to pay or deny the claims at issue, and therefore the motion for summary judgment was denied.

Reported in New York Official Reports at New Quality Med., P.C. v Allstate Ins. Co. (2015 NY Slip Op 51405(U))

New Quality Med., P.C. v Allstate Ins. Co. (2015 NY Slip Op 51405(U)) [*1]

New Quality Med., P.C. v Allstate Ins. Co.

2015 NY Slip Op 51405(U) [49 Misc 3d 129(A)]

Decided on September 16, 2015

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This opinion is uncorrected and will not be published in the printed Official Reports.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 September 16, 2015

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

PRESENT: PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-666 K C

New Quality Medical, P.C. as Assignee of Roman Gavrilov, Appellant,
against
Allstate Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Dawn Jimenez Salta, J.), entered January 18, 2013. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint.

The denial of claim forms at issue were untimely on their face. Plaintiff argues, among other things, that defendant failed to establish its entitlement to summary judgment dismissing the complaint because defendant failed to demonstrate that it tolled its time to pay or deny the claims at issue by sending timely examination under oath (EUO) scheduling letters to plaintiff. A review of the record reveals that the EUO scheduling letters annexed in support of defendant’s motion identified the dates of loss, claim numbers and the names of eligible injured persons to which these EUO scheduling letters were applicable. As the annexed EUO scheduling letters do not include the name of plaintiff’s assignor, his date of loss or the claim number applicable to claims concerning him, defendant failed to establish as a matter of law that it tolled its time to pay or deny the claims at issue. In light of the foregoing, we need not pass upon plaintiff’s remaining arguments.

Accordingly, the order is reversed and defendant’s motion for summary judgment is denied.

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Decision Date: September 16, 2015