Kings Med. Supply Inc. v GEICO Ins.

[*1] Kings Med. Supply Inc. v GEICO Ins. 2004 NY Slip Op 50904(U) Decided on March 4, 2004 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 4, 2004
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
PRESENT: ARONIN, J.P., PATTERSON and RIOS, JJ.
NO. 2003-500 K C

KINGS MEDICAL SUPPLY INC., a/a/o Lakesha Barnes, Appellant,

against

GEICO INSURANCE, Respondent.

Appeal by plaintiff from so much of an order of the Civil Court, Kings County

(J. Sullivan, J.), dated November 27, 2002, as denied its motion for summary judgment.

Order insofar as appealed from unanimously reversed without costs, plaintiff's motion for summary judgment granted in the principal sum of $795 and matter remanded to the court below for a calculation of statutory interest and an assessment of attorney's fees.

Plaintiff sued to recover first-party no-fault benefits for medical supplies it provided to the injured assignor. In our opinion, plaintiff's motion for summary judgment should have been granted.
The Insurance Regulation in effect in 2001, when the medical supplies were provided, was section 65.15 (d) (3) which stated that the eligible injured person shall submit to medical examinations when, and as often as, the company may reasonably require. There was no provision requiring the eligible person to appear for an examination under oath (EUO) until the following year, when the new regulation became effective on April 5, 2002 (11 NYCRR 65-3.5 [e]; A.B. Med. Serv. PLLC v Lumbermens Mut. Cas. Co., NYLJ, Oct. 27, 2003 [App Term, 2d & 11th Jud Dists]; Bronx Med. Serv. P.C. v Lumbermans Mut. Cas. Co., NYLJ, June 13, 2003 [App Term, 1st Dept]), and, thus, defendant's EUO demands did not toll the 30-day period in which an insurer must act upon a claim or be precluded from most defenses (Insurance Law § 5106 [a]; Central Gen Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]; A.B. Med. Serv. PLLC v Eagle Ins. Co., NYLJ, Dec. 29, 2003 [App Term, 9th & 10th Jud Dists]). Since there was no requirement that plaintiff's assignor appear for an examination under oath as requested by defendant, plaintiff is entitled to summary judgment.

The matter is remanded to the court below for a calculation of the statutory interest and an assessment of attorney's fees (see Insurance Law § 5106 [a]; 11 NYCRR 65.17 [b] [6]; 65.15 [*2][h] [1]; St. Clare's Hosp. v Allstate Ins. Co., 215 AD2d 641 [1995]).
Decision Date: March 04, 2004