February 28, 2014

Clove Med. Supply, Inc. v Ameriprise Ins. Co. (2014 NY Slip Op 50357(U))

Headnote

The relevant facts of this case revolve around a dispute over first-party no-fault benefits, with the plaintiff, Clove Medical Supply, Inc., seeking to recover assigned benefits from Ameriprise Ins. Co. The main issue decided by the court was whether the defendant, Ameriprise, had the right to deny the claims on the basis that the plaintiff had failed to appear for an examination under oath (EUO). The court held that the defendant failed to demonstrate that it had timely mailed its initial and follow-up requests for EUOs, and therefore failed to toll its time to pay or deny the claims. As a result, the court affirmed the order of the Civil Court, denying the defendant's motion for summary judgment dismissing the complaint.

Reported in New York Official Reports at Clove Med. Supply, Inc. v Ameriprise Ins. Co. (2014 NY Slip Op 50357(U))

Clove Med. Supply, Inc. v Ameriprise Ins. Co. (2014 NY Slip Op 50357(U)) [*1]

Clove Med. Supply, Inc. v Ameriprise Ins. Co.

2014 NY Slip Op 50357(U) [42 Misc 3d 146(A)]

Decided on February 28, 2014

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This opinion is uncorrected and will not be published in the printed Official Reports.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 February 28, 2014

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ
2012-2145 K C.

Clove Medical Supply, Inc. as Assignee of ALFREDO CARRION, Respondent,
against
Ameriprise Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Reginald A. Boddie, J.), entered August 16, 2012. The order denied defendant’s motion for summary judgment dismissing the complaint.

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 which denied its motion for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for an examination under oath (EUO).

In support of its motion, defendant was required, but failed, to demonstrate that its initial and follow-up requests for EUOs of plaintiff had been timely mailed (see Insurance Department Regulations [11 NYCRR] §§ 65-3.5 [b] 65-3.6 [b]), as the record is devoid of any reference to the dates on which defendant had received plaintiff’s claim forms. Consequently, defendant failed to demonstrate that it had tolled its time to pay or deny the claims, and, thus, that it is not precluded from raising its proffered defense that plaintiff had failed to appear for an EUO (see Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 282 [1997] Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2009]). In view of the foregoing, the Civil Court properly denied defendant’s motion (see NYU-Hosp. for Joint Diseases v American Intl. Group, Inc., 89 AD3d 702 [2011] Westchester Med. Ctr., 60 AD3d 1045).

Accordingly, the order is affirmed.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: February 28, 2014