November 12, 2015

Great Health Care Chiropractic, P.C. v Travelers Ins. Co. (2015 NY Slip Op 51665(U))

Headnote

The relevant facts that the court considered in this case were that Great Health Care Chiropractic, P.C. sought to recover no-fault benefits from Travelers Insurance Company, but defendant had denied the claim on the grounds that the plaintiff had failed to appear at scheduled examinations under oath (EUOs). The main issue decided by the court was whether the denial of the claim was valid based on the plaintiff's failure to comply with the EUO requirement. The holding of the court was that the denial of the claim was not valid because the defendant had failed to schedule the EUOs within the required time frame, and therefore had not demonstrated that the denial of the claim was based on a failure to comply with a condition precedent to coverage. The court reversed the previous order and denied the defendant's motion for summary judgment dismissing the complaint.

Reported in New York Official Reports at Great Health Care Chiropractic, P.C. v Travelers Ins. Co. (2015 NY Slip Op 51665(U))

Great Health Care Chiropractic, P.C. v Travelers Ins. Co. (2015 NY Slip Op 51665(U)) [*1]

Great Health Care Chiropractic, P.C. v Travelers Ins. Co.

2015 NY Slip Op 51665(U) [49 Misc 3d 145(A)]

Decided on November 12, 2015

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This opinion is uncorrected and will not be published in the printed Official Reports.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 12, 2015

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-1460 K C

Great Health Care Chiropractic, P.C. as Assignee of BERNARD FITZGERALD, Appellant,
against
Travelers Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered April 30, 2013. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, with $25 costs, and defendant’s motion for summary judgment dismissing the complaint is denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint, alleging that the claim at issue had been timely and properly denied on the ground that plaintiff had failed to appear at duly scheduled examinations under oath (EUOs). Plaintiff opposed the motion. By order entered April 30, 2013, the Civil Court granted defendant’s motion.

Pursuant to the No-Fault Regulations, “any additional verification required by the insurer to establish proof of claim shall be requested within 15 business days of receipt of the [NF-3]” (11 NYCRR 65-3.5 [b] [emphasis added]). This rule applies to requests for EUOs (see e.g. Longevity Medical Supply, Inc. v IDS Property & Cas. Ins. Co., 44 Misc 3d 137[A], 2014 NY Slip Op 51244[U] [App Term, 2d, 11th & 13th Jud Dists 2014])” (O & M Med., P.C. v Travelers Indem. Co., 47 Misc 3d 134[A], 2015 NY Slip Op 50476[U] [App Term, 2d, 11th & 13th Jud Dists 2015]). As defendant’s moving papers reflect that defendant’s first EUO scheduling letter was mailed about 50 days after defendant had received the claim at issue in this action, defendant failed to demonstrate that it had properly denied the claim based upon plaintiff’s failure to comply with a condition precedent to coverage (see O & M Med., P.C., 47 Misc 3d 134[A], 2015 NY Slip Op 50476[U]; St. Vincent Med. Care, P.C. v Travelers Ins. Co., 26 Misc 3d 144[A], 2010 NY Slip Op 50446[U] [App Term, 2d, 11th & 13th Jud Dists 2010]).

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

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

Decision Date: November 12, 2015