November 13, 2020

A.C. Med., P.C. v Ameriprise Ins. Co. (2020 NY Slip Op 51376(U))

Headnote

The main issue in this case was whether the defendant had timely denied the plaintiff's claims after the plaintiff had failed to appear for duly scheduled examinations under oath (EUOs). The court considered the fact that the defendant had contended that its initial EUO scheduling letter tolled the time to pay or deny all of the claims at issue and that the toll was maintained by timely follow-up scheduling letters. However, the court found that the defendant's motion failed to establish, as a matter of law, that the defendant had timely denied the plaintiff's claims after the plaintiff had failed to appear at both an initial and a follow-up EUO. The holding of the court was that the order denying the defendant's motion for summary judgment was affirmed.

Reported in New York Official Reports at A.C. Med., P.C. v Ameriprise Ins. Co. (2020 NY Slip Op 51376(U))

A.C. Med., P.C. v Ameriprise Ins. Co. (2020 NY Slip Op 51376(U)) [*1]

A.C. Med., P.C. v Ameriprise Ins. Co.

2020 NY Slip Op 51376(U) [69 Misc 3d 144(A)]

Decided on November 13, 2020

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This opinion is uncorrected and will not be published in the printed Official Reports.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 13, 2020

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

PRESENT: : THOMAS P. ALIOTTA, P.J., DAVID ELLIOT, BERNICE D. SIEGAL, JJ
2018-2565 K C

A.C. Medical, P.C., as Assignee of Jorge Palacios, Respondent,
against
Ameriprise Insurance Company, Appellant.

Bruno, Gerbino. Soriano & Aitken, LLP (Nathan M. Shapiro of counsel), for appellant. Law Office of Melissa Betancourt, P.C. (Melissa Betancourt of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Sharon Bourne-Clarke, J.), entered November 8, 2018. The order denied defendant’s motion for summary judgment.

ORDERED that the order is affirmed, with $25 costs.

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

Defendant contends that its initial EUO scheduling letter tolled defendant’s time to pay or deny all of the claims at issue (see 11 NYCRR 65-3.5 [b]; ARCO Med. NY, P.C. v Lancer Ins. Co., 34 Misc 3d 134[A], 2011 NY Slip Op 52382[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]), that the toll was maintained by timely follow-up scheduling letters (see 11 NYCRR 65-3-6 [b) and that defendant had timely denied plaintiff’s claims (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Upon a review of the record, we find that defendant’s motion failed to establish, as a matter of law, that defendant had timely denied plaintiff’s claims after plaintiff had failed to appear at both an initial and a follow-up EUO.

Accordingly, the order is affirmed.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 13, 2020