Inwood Hill Med., P.C. v Allstate Ins. Co.

[*1] Inwood Hill Med., P.C. v Allstate Ins. Co. 2007 NY Slip Op 51103(U) [15 Misc 3d 143(A)] Decided on May 30, 2007 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 30, 2007
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKEON, P.J., McCOOE, DAVIS, JJ
570146/07.

Inwood Hill Medical, P.C. a/a/o Bartley Almond, Plaintiff-Appellant, - -

against

Allstate Insurance Company, Defendant-Respondent.

Plaintiff, as limited by its brief, appeals from that portion of an order of the Civil Court of the City of New York, Bronx County (Mitchell J. Danziger, J.), entered February 5, 2007, which granted defendant's motion to dismiss to the extent of directing the deposition of Dr. Noel Howell.

PER CURIAM:

Order (Mitchell J. Danziger, J.), entered February 5, 2007, modified to vacate so much of the order as directed the deposition of Dr. Noel Howell, and as modified, affirmed, with $10 costs.

Defendant moved to dismiss on the ground that Dr. Noel Howell, alleged president of plaintiff provider, failed to appear for scheduled examinations under oath (EUOs). Even assuming that defendant's letters requesting the examination of Dr. Howell constituted valid EUO requests, defendant failed to submit competent proof in admissible form to establish the dates of receipt of the subject claims, and hence, that its EUO requests were made in compliance with the time limits set forth in the verification procedures (see 11 NYCRR 65-3.5(b); 11 NYCRR 65-3.6(b); Bronx Med. Servs. P.C. v Windsor Ins. Co., 2003 NY Slip Op 50885[U][2003]). Inasmuch as noncompliance with the requests for EUOs was the sole ground for defendant's motion to dismiss, there was no basis for Civil Court to direct a deposition of Dr. Howell.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: May 30, 2007