Star Med. Servs., P.C. v Allstate Ins. Co. (2006 NY Slip Op 50245(U))

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Eileen Nadelson, J.), entered October 29, 2004, deemed an appeal from a judgment of that court entered December 20, 2004. The order granted plaintiff’s motion for summary judgment. The judgment entered thereon awarded plaintiff the principal sum of $4,460.

Judgment unanimously reversed, order entered October 29, 2004 vacated and plaintiff’s motion granted only to the extent of awarding plaintiff summary judgment in the principal sum of $1,791 with respect to the claims submitted on behalf of Naika Gousse, and matter remanded to the court below for a calculation of statutory interest and an assessment of attorney’s fees thereon, and for all further proceedings on the remaining claims.

We have deemed the appeal from the order entered October 29, 2004, which granted plaintiff’s motion for summary judgment, to be an appeal from the judgment entered pursuant to that order (see CPLR 5520 [c]; Neuman v Otto, 114 AD2d 791 [1985]).

In this action to recover first-party no-fault benefits for medical services rendered to its assignors, plaintiff health care provider established a prima facie entitlement to summary judgment by proof that it submitted claims, setting forth the fact and the amounts of the losses sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]).

In opposition to plaintiff’s motion, defendant failed to raise a triable issue of fact with respect to the claims totaling $1,791, which were submitted on behalf of plaintiff’s assignor, [*2]Naika Gousse. Although said claims were submitted subsequent to April 5, 2002, the effective date of the revised no-fault insurance regulations (which authorize examinations under oath [EUOs] for verification purposes), defendant’s submissions failed to establish that the insurance policy in effect at the time the EUOs were requested contained a no-fault endorsement including a provision authorizing EUOs (see Careplus Med. Supply Inc. v Travelers Home & Marine Ins. Co., 7 Misc 3d 133[A], 2005 NY Slip Op 50648[U] [App Term, 2d & 11th Jud Dists]). Contrary to defense counsel’s contentions, an EUO provision in the mandatory no-fault endorsement is distinct from an EUO provision in the liability portion of the policy (see Melbourne Med., P.C. v Utica Mut. Ins. Co., 4 Misc 3d 92 [App Term, 2d & 11th Jud Dists 2004]). Moreover, even assuming that the policy did contain an endorsement authorizing EUOs, defendant did not follow the requisite follow-up verification procedures (see 11 NYCRR 65-3.5 [b]). Accordingly, the claim denials based upon Gousse’s nonattendance were ineffective (see King’s Med. Supply Inc. v New York Central Mut. Fire Ins. Co., 5 Misc 3d 136[A], 2004 NY Slip Op 51550[U] [App Term, 2d & 11th Jud Dists]).

On the other hand, with respect to the claims totaling $2,669, which were submitted on behalf of plaintiff’s assignor, Jimmy Cadet, defendant’s submissions were legally sufficient to support defendant’s allegations that the alleged injuries did not arise out of an insured incident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195 [1997]). Accordingly, since defendant demonstrated the existence of a
triable issue of fact, the court below erred in granting plaintiff’s motion for summary judgment with respect to the claims submitted on behalf of plaintiff’s assignor, Jimmy Cadet.

In view of the foregoing, plaintiff is granted summary judgment in the principal sum of $1,791 with respect to the claims submitted on behalf of Naika Gousse, and the matter is remanded to the court below for the calculation of statutory interest and attorney’s fees due on those claims, pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder, and for all further proceedings on the remaining claims submitted on behalf of Jimmy Cadet.
Decision Date: February 14, 2006