March 11, 2016

Bay LS Med. Supplies, Inc. v Allstate Ins. Co. (2016 NY Slip Op 50319(U))

Headnote

The court considered the fact that the defendant had timely and properly mailed letters scheduling examinations under oath (EUOs) and denial of claim forms due to the plaintiff's failure to appear at the EUOs. The main issue was whether the defendant's EUO scheduling letters were defective and if the plaintiff's objections regarding the letters would be heard. The holding of the case was that the defendant's cross motion for summary judgment dismissing the complaint should have been granted, as the plaintiff did not claim to have responded in any way to the EUO requests, and therefore the objections regarding the scheduling letters would not be heard. Therefore, the order was reversed, the plaintiff's motion for summary judgment was denied, and the defendant's cross motion for summary judgment dismissing the complaint was granted.

Reported in New York Official Reports at Bay LS Med. Supplies, Inc. v Allstate Ins. Co. (2016 NY Slip Op 50319(U))

Bay LS Med. Supplies, Inc. v Allstate Ins. Co. (2016 NY Slip Op 50319(U)) [*1]

Bay LS Med. Supplies, Inc. v Allstate Ins. Co.

2016 NY Slip Op 50319(U) [50 Misc 3d 147(A)]

Decided on March 11, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 March 11, 2016

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

PRESENT: : WESTON, J.P., PESCE and ALIOTTA, JJ.
2014-1121 K C

Bay LS Medical Supplies, Inc., as Assignee of Pablo Lozano-Reyes, Respondent,
against
Allstate Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered November 1, 2013. The order granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint.

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

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 plaintiff had failed to appear for duly scheduled examinations under oath (EUOs). Defendant appeals from an order of the Civil Court granting plaintiff’s motion and denying defendant’s cross motion.

Defendant established that it had timely and properly mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) its EUO scheduling letters and its denial of claim forms, which denied the claims on the ground that plaintiff had failed to appear at duly scheduled EUOs. Although the Civil Court found that defendant had established plaintiff’s nonappearances, the court held, as plaintiff argues, that defendant’s EUO scheduling letters were defective. However, under the circumstances presented, as plaintiff does not claim to have responded in any way to defendant’s EUO requests, plaintiff’s objections regarding the EUO scheduling letters will not be heard (see Eagle Surgical Supply, Inc. v Allstate Ins. Co., 46 Misc 3d 128[A], 2014 NY Slip Op 51798[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]; Viviane Etienne Med. Care, P.C. v State Farm Mut. Auto. Ins. Co., 35 Misc 3d 127[A], 2012 NY Slip Op 50579[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]). In light of the foregoing, defendant’s cross motion should have been granted. We pass on no other issue.

Accordingly, the order is reversed, plaintiff’s motion for summary judgment is denied, and defendant’s cross motion for summary judgment dismissing the complaint is granted.

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

Decision Date: March 11, 2016