Hillside OpenMRI, P.C. v Allstate Ins. Co. (2014 NY Slip Op 51143(U))

Appeal from an order of the District Court of Nassau County, First District (Fred J. Hirsh, J.), dated December 3, 2012. The order denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that the branches of defendant’s motion seeking summary judgment dismissing the first, fourth and fifth causes of action of the complaint are granted; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint based on the failure of plaintiff’s assignor to appear for scheduled examinations under oath (EUOs). The District Court denied defendant’s motion on the ground that defendant had not offered a reason why it had requested an EUO. This appeal by defendant ensued.

With respect to the fourth cause of action, seeking to recover upon a claim for $879.73, and the fifth cause of action, seeking attorney’s fees with respect thereto, defendant established that the time to pay or deny this claim had been tolled by the timely issuance of EUO scheduling letters (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]); that plaintiff had failed to appear for either of the properly scheduled EUOs; and that the claim had been timely denied (see id.) on that ground. Contrary to the determination of the District Court, no “provision of No-Fault Regulations 68 requires an insurer’s notice of scheduling an EUO to specify the reason(s) why the insurer is requiring the EUOs” (2006 Ops Ins Dept No. 06-12-16 [http://www.dfs.ny.gov/insurance/ogco2006/rg061216.htm]). Moreover, the Insurance Department’s interpretation of the Regulations “is entitled to deference unless irrational or unreasonable” (Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 722 [2006] [internal quotation marks omitted]). An assignor’s appearance at an EUO “is a condition precedent to the insurer’s liability on the policy” (see Stephen Fogel Psychological, P.C., 35 AD3d at 722). The opposing affirmation submitted by plaintiff’s counsel did not raise a triable issue of fact with respect to these causes of action. As plaintiff does not allege, let alone establish, that it or its assignor responded in any way to defendant’s EUO requests, plaintiff’s remaining objections regarding the EUO requests will not now be heard (see Crescent Radiology, PLLC v American Tr. Ins. Co., 31 Misc 3d 134[A], 2011 NY Slip Op 50622[U] [App Term, 9th & 10th Jud Dists 2011]). Consequently, the branches of defendant’s motion seeking summary judgment dismissing the fourth and fifth causes of action should have been granted.

With respect to the second cause of action, seeking to recover upon a claim for $878.66, and the third cause of action, seeking attorney’s fees with respect thereto, defendant’s claim representative stated that defendant had received plaintiff’s claim for the sum of $878.66 on July 8, 2010 and that it had denied the claim on October 4, 2010. She also stated that defendant had [*2]sent delay letters, dated July 30, 2010 and September 9, 2010 to plaintiff after the receipt of the claim. The letters informed plaintiff that payment of the claim would be delayed pending an EUO of the injured party. However, an insurer’s delay letters, which request no verification, are insufficient to toll the 30-day statutory time period within which a claim must be paid or denied (see Nyack Hosp. v Encompass Ins. Co., 23 AD3d 535 [2005]). Since defendant did not establish that it had otherwise tolled its time to pay or deny the claims, defendant failed to demonstrate that the claim underlying these causes of action had been timely denied. Thus, the branches of defendant’s motion seeking dismissal of the second and third causes of action were properly denied.

As the first cause of action does not allege a separate cause of action, it should also have been dismissed.

Accordingly, the order is modified by providing that the branches of defendant’s motion seeking summary judgment dismissing the first, fourth and fifth causes of action of the complaint are granted.

Iannacci, J.P., Marano and Garguilo, JJ., concur.