November 16, 2005

SZ Med. P.C. v State Farm Mut. Auto. Ins. Co. (2005 NY Slip Op 51842(U))

Headnote

The relevant facts the court considered in this case were related to a dispute over first party no-fault benefits for medical services rendered to patients of the plaintiff health care providers. The main issue was whether the plaintiff providers were entitled to summary judgment for unpaid claims, and whether the insurance company could require the patients to submit to examinations under oath. The court held that the plaintiff providers were entitled to summary judgment in the amount demanded in the complaint, as they had submitted claims and payment was overdue. The court also held that the insurance company could not require the patients to submit to examinations under oath, as the insurance policy did not contain the necessary endorsement authorizing such examinations. Therefore, the insurance company could not rely on revised regulations to argue that the plaintiffs had vitiated coverage by failing to comply with a condition precedent, and the decision was in favor of the plaintiffs.

Reported in New York Official Reports at SZ Med. P.C. v State Farm Mut. Auto. Ins. Co. (2005 NY Slip Op 51842(U))

SZ Med. P.C. v State Farm Mut. Auto. Ins. Co. (2005 NY Slip Op 51842(U)) [*1]

SZ Med. P.C. v State Farm Mut. Auto. Ins. Co.

2005 NY Slip Op 51842(U) [9 Misc 3d 139(A)]

Decided on November 16, 2005

Appellate Term, First 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This opinion is uncorrected and will not be published in the printed Official Reports.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 16, 2005

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

PRESENT: November 16, 2005 October 2004 Term Suarez, P.J., Davis, Schoenfeld, JJ.

SZ Medical P.C., Life Chiropractic P.C., Somun Acupuncture P.C., a/a/o Sharifa Lubega and Dwayne Saunders, NY County Clerk’s Plaintiffs-Appellants,No. 570347/04
against
State Farm Mutual Automobile Insurance CompanyCalendar No. ,04-229 Defendant-Respondent.

Plaintiffs appeal from that portion of an order of Civil Court, New York County (Debra Rose Samuels, J.), entered February 6, 2004, which denied their motion for summary judgment.

PER CURIAM:

Order (Debra Rose Samuels, J.) entered February 6, 2004, reversed, with $10 costs, plaintiffs’ motion for summary judgment is granted in the amount demanded in the complaint and the matter is remanded to Civil Court for a calculation of statutory interest and an assessment of attorneys’ fees due thereon, and for entry of judgment.

In this action to recover first party no-fault benefits for medical services rendered to its assignors, the plaintiff health care providers established a prima facie entitlement to summary judgment by evidentiary proof that they submitted claims between December 27, 2002 and April 8, 2003, setting forth the facts and the amounts thereof, and that payment of no-fault benefits was overdue as defendant neither paid nor denied the claims within 30 days as required by Insurance Law § 5106(a) (see Mary Immaculate Hospital v Allstate Ins. Co., 5 AD3d 742 [2004]).

We find unavailing defendant’s argument that plaintiffs are not entitled to judgment because the assignors failed to submit to examinations under oath (EUOs). While the prescribed No-Fault Mandatory Personal Injury Protection Endorsement under 11 NYCRR §65-1.1(d) provides in the “Conditions” section that an injured person “shall … as may reasonably be [*2]required submit to examinations under oath …,” defendant did not establish that the insurance policy in effect contained the no-fault endorsement authorizing EUOs. Although plaintiffs’ claims were submitted after the April 5, 2002 effective date of the revised insurance regulations, the provisions of said regulations are not applicable to claims until new or renewed policies containing the revised endorsement are issued (see Elite Psychological Services, P.C. v Trumball Ins. Co., 2005 NY Slip Op 51427U [App Term 1st Dept]); Star Medical Services, P.C. v Eagle Insurance Company, 6 Misc 3d 56 [2004]). Consequently, absent a showing that the subject policy contained a no-fault endorsement permitting EUOs, defendant cannot rely on the revised regulations to argue that plaintiffs vitiated coverage by failing to comply with a condition precedent.

Nor may defendant base its right to an EUO on the policy provisions providing for “cooperation” because the no-fault protection created by the statute and implementing regulations cannot be qualified by the conditions of the liability portion of the policy (see Utica Mut. Ins. Co. v Timms, 293 AD2d 669, 670 [2002], lv dismissed 98 NY2d 727 [2002]; Bronx Med. Serv. P.C. v Lumbermans Mut. Cas. Co., 2003 NY Slip Op 51022U [App Term, 1st Dept]).

This constitutes the decision and order of the court.
Decision Date: November 16, 2005