March 17, 2014

Eagle Surgical Supply, Inc. v Allstate Fire & Cas. Ins. Co. (2014 NY Slip Op 50464(U))

Headnote

The relevant facts considered by the court in this case were that the plaintiff, Eagle Surgical Supply, Inc., appealed an order from the Civil Court dismissing their complaint. The defendant, Allstate Fire & Casualty Insurance Company, had filed a motion for summary judgment based on the plaintiff's failure to appear for scheduled examinations under oath. However, the defendant did not provide evidence to establish when they had received the plaintiff's claim forms, which would have tolled the 30-day period within which the defendant was required to pay or deny the claims. The main issue decided by the court was whether the defendant had demonstrated that it was not precluded from raising its defense that the plaintiff failed to appear for scheduled EUOs. The court held that the defendant had failed to provide evidence to establish that it had tolled the 30-day period required to pay or deny the claims, and as a result, the defendant's motion for summary judgment should have been denied. Therefore, the judgment was reversed, the order was vacated, and the defendant's motion for summary judgment was denied.

Reported in New York Official Reports at Eagle Surgical Supply, Inc. v Allstate Fire & Cas. Ins. Co. (2014 NY Slip Op 50464(U))

Eagle Surgical Supply, Inc. v Allstate Fire & Cas. Ins. Co. (2014 NY Slip Op 50464(U)) [*1]

Eagle Surgical Supply, Inc. v Allstate Fire & Cas. Ins. Co.

2014 NY Slip Op 50464(U) [43 Misc 3d 126(A)]

Decided on March 17, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 March 17, 2014

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ
2012-122 Q C.

Eagle Surgical Supply, Inc. as Assignee of ASIF BAXTER, Appellant,
against
Allstate Fire & Casualty Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (William A. Viscovich, J.), entered November 17, 2011, deemed from a judgment of the same court entered December 14, 2011 (see CPLR 5501 [c]). The judgment, entered pursuant to the November 17, 2011 order granting defendant’s motion for summary judgment, dismissed the complaint

ORDERED that the judgment is reversed, with $30 costs, the order entered November 17, 2011 is vacated, and defendant’s motion for summary judgment 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. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

Defendant’s motion for summary judgment was based upon plaintiff’s failure to appear for scheduled examinations under oath (EUOs). However, defendant failed to proffer evidence in admissible form establishing when it had received plaintiff’s claim forms (see Five Boro Psychological Servs., P.C. v Progressive Northeastern Ins. Co., 32 Misc 3d 136[A], 2011 NY Slip Op 51528[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). Consequently, defendant did not establish that it had tolled the 30-day period within which defendant was required to pay or deny the claims so that it may be determined, as a matter of law, that its NF-10 denial of claim form had been timely mailed. As defendant has not demonstrated that it is not precluded from raising its defense that plaintiff failed to appear for duly scheduled EUOs (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2d Dept 2009] cf. Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559 [1st Dept 2011]), its motion for summary judgment should have been denied.

Accordingly, the judgment is reversed, the order entered November 17, 2011 is vacated, and defendant’s motion for summary judgment is denied.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: March 17, 2014