Elite Psychological Servs., P.C. v Trumbull Ins. Co.

[*1] Elite Psychological Servs., P.C. v Trumbull Ins. Co. 2005 NY Slip Op 51427(U) [9 Misc 3d 126(A)] Decided on September 9, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 9, 2005
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT:
HON. WILLIAM P. McCOOE, J.P.
HON. WILLIAM J. DAVIS
HON. PHYLLIS GANGEL-JACOB, Justices.


Elite Psychological Services, P.C., as 570440/04 Assignee of Harnarine Sumeer, Plaintiff-Appellant,

against

Trumbull Ins. Co., Defendant-Respondent.

Plaintiff appeals from an order of the Civil Court of the City of New York, Bronx County, entered March 30, 2004 (Irving Rosen, J.) which denied its motion for summary judgment and granted defendant's cross motion for summary judgment dismissing the complaint.

PER CURIAM:

Order entered March 30, 2004 (Irving Rosen, J.) reversed, with $10 costs, plaintiff's motion for summary judgment is granted, defendant's cross motion is denied and the matter is remanded to Civil Court for a calculation of statutory interest, an assessment of attorney's fees due thereon and entry of judgment.

Plaintiff health care provider commenced this action to recover $1,080.90 in first-party no-fault benefits for medical services rendered in February and March 2002 to its assignor, Harnarine Sumeer (Sumeer), for injuries allegedly sustained in a motor vehicle accident on December 17, 2001. Plaintiff mailed its claim on May 30, 2002 and defendant acknowledged receipt thereof on June 3, 2002. The suit is premised on defendant's failure to pay or deny the claim within 30 days after its receipt. Defendant's reason for denying the claim, as stated in its Denial Of Claim Form dated August 15, 2002, was Sumeer's nonattendance at scheduled [*2]examinations under oath (EUOs).

Plaintiff established a prima facie showing of entitlement to judgment as a matter of law by proof that its claim had been mailed and received, and that payment of no-fault benefits was overdue (see Insurance Law 5106[a]; Mary Immaculate Hosp v Allstate Ins Co, 5 AD3d 742 [2004]).

Defendant failed to raise triable issues of fact since its submissions did not establish that the insurance policy in effect contained an endorsement authorizing EUOs pursuant to 11 NYCRR 65-1.1(d). While plaintiff's claim was submitted after the April 5, 2002 effective date of the revised insurance regulations which include EUOs in the Mandatory Personal Injury Protection Endorsement, the provisions of the revised regulations are not applicable to claims until new policies containing the revised endorsement are issued or renewed (see Star Medical Services PC v Eagle Insurance Company, 6 Misc3d 56 [2004]). Consequently, absent a showing that the subject policy contained an endorsement permitting EUOs, defendant was not entitled to a tolling of the 30-day period (11 NYCRR 65-3.8[c]) and its denial of plaintiff's claim was untimely.

This constitutes the decision and order of the court.
Decision Date: September 09, 2005