Eagle Surgical Supply, Inc. v Allstate Indem. Co.

[*1] Eagle Surgical Supply, Inc. v Allstate Indem. Co. 2013 NY Slip Op 52012(U) Decided on November 26, 2013 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 26, 2013
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ
2012-120 Q C.

Eagle Surgical Supply, Inc. as Assignee of BARISTA ESTEBAN, Appellant,

against

Allstate Indemnity Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (William A. Viscovich, J.), entered November 17, 2011, deemed from a judgment of the same court entered December 12, 2011 (see CPLR 5501 [c]). The judgment, entered pursuant to the November 17, 2011 order granting defendant's motion for summary judgment, dismissed the complaint.

ORDERED that the judgment is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant's motion for summary judgment dismissing the complaint. Defendant's motion papers set forth that it had timely denied the claims at issue based upon plaintiff's failure to appear for duly scheduled examinations under oath (EUOs). A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

Plaintiff's main argument on appeal is that defendant was not entitled to summary judgment because defendant's first EUO scheduling letter was untimely, resulting in a failure to toll its time to pay or deny the claim and rendering the denial of claim form untimely. Although [*2]this argument is raised for the first time on appeal, it may be considered by this court "since it is one of law appearing on the face of the record and it could not have been avoided had it been raised at the proper juncture" (Navillus Tile, Inc. v George A. Fuller Co., Inc., 83 AD3d 919, 920 [2011]; see also Olim Realty v Lanaj Home Furnishings, 65 AD3d 1318, 1320 [2009]).

A review of the file reveals that defendant received the subject claim form on February 17, 2009 and mailed its first EUO scheduling letter on March 23, 2009, 24 business days later. Requests for additional verification are untimely if not made within 15 business days of the insurer's receipt of the claim form (see Insurance Department Regulations [11 NYCRR] § 65-3.5 [b]). However, since the first EUO request was nine days late, pursuant to Insurance Department Regulations (11 NYCRR) § 65-3.8 (j), defendant's time to pay or deny the claim was reduced from 30 calendar days to 21 calendar days. Defendant mailed its denial of claim form 20 days after plaintiff failed to show up for the final scheduled EUO. Accordingly, plaintiff's argument is without merit.

To the extent plaintiff seeks to argue on appeal that defendant's EUO request was unwieldy and unduly burdensome, plaintiff does not claim to have responded in any way to the EUO request, and its objections will not now be heard (see Viviane Etienne Med. Care, P.C. v State Farm Mut. Auto. Ins. Co., 35 Misc 3d 127[A], 2012 NY Slip Op 50579[U] [App Term, 2d, 11th & 13th Jud Dists 2012]; 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]).

Accordingly, the judgment is affirmed.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: November 26, 2013