Infinity Health Prods., Ltd. v Progressive Ins. Co.
Annotate this CaseDecided on July 22, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : GOLIA, J.P., PESCE and RIOS, JJ
2009-265 Q C.
Infinity Health Products, Ltd. a/a/o Jessica Walters, Respondent,
against
Progressive Insurance Company, Appellant.
Appeal from a judgment of the Civil Court of the City of New York, Queens County (Diane
A. Lebedeff, J.), entered November 28, 2008. The judgment, entered pursuant to an order
granting plaintiff's motion for summary judgment, awarded plaintiff the principal sum of
$1,500.50.
ORDERED that the judgment is affirmed without costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved
for summary judgment. In opposition to the motion, defendant argued
that it had timely denied plaintiff's claims based upon plaintiff's assignor's failure to appear
for an examination under oath (EUO). By order dated October 9, 2008, the Civil Court granted
plaintiff's motion, and a judgment was entered in plaintiff's favor pursuant to that order.
To raise a triable issue of fact based on the assignor's failure to appear at scheduled EUOs, defendant was required to demonstrate that its initial and follow-up requests for verification were timely (see Insurance Department Regulations [11 NYCRR] §§ 65-3.5 [b]; 65-3.6 [b]) and establish, by an affidavit of one with personal knowledge, that the assignor had failed to appear for the EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Since defendant failed to establish that the EUO scheduling letters were timely mailed (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]), defendant failed to demonstrate that the 30-day claim determination period (Insurance Department Regulations [11 NYCRR] § 65-3.8) was tolled. As a result, defendant failed to establish that its denial of claim forms were timely and, thus, that it is not precluded from raising as a defense the failure of plaintiff's assignor to appear for an EUO (see Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 282 [1997]). [*2]
Accordingly, the judgment is affirmed.
Pesce and Rios, JJ., concur.
Golia, J.P., dissents in a separate memorandum.
Golia, J.P., dissents and votes to reverse the judgment, vacate the order granting plaintiff's motion for summary judgment, and deny the motion.
I disagree with the assertion by the majority that it was defendant's burden "to demonstrate that its initial and follow-up requests for verification were timely" in addition to also establishing "that the assignor had failed to appear" for the examinations under oath (EUOs). To the contrary, the Civil Court merely found that defendant had "failed to submit sufficient evidence of the alleged no show."
Inasmuch as plaintiff did not submit a brief on appeal, it consequently failed to raise any issue as to the sufficiency of the mailing or the timeliness of the verification notices to appear for the EUOs. Clearly, those issues should not be addressed on this appeal. The only issue before us is the decision of the Civil Court, which simply found defendant's evidence alleging the claimed "no show" was insufficient.
My dissent then confines itself to the only issue addressed on appeal, that is, the sufficiency of the evidence to establish the "alleged no show."
Two separate certified transcripts were presented by defendant to establish the failure of the assignor to appear for the EUOs. These transcripts were taken at the offices of counsel for plaintiff's assignor, Ms. Walters, in the presence of a paralegal employed by the assignor's counsel and an investigator employed by defendant. The certified transcript of the first EUO contains statements by the investigator, on the record, to the effect that Ms. Walters had not appeared even though it was one hour past the time of the examination. That transcript contains no statement by the paralegal employee of Ms. Walters' attorney who was present.
The second EUO transcript was also certified and taken at the offices of Ms. Walters' counsel. It contains the statement of the investigator, who states that "I was informed by the receptionist, Jenny, that the insured, Jessica Walters, called . . . and informed them that she would not be able to attend today's Examination Under Oath." That unopposed information came directly from Jenny, the agent of the eligible injured person's attorney.
If the statements submitted by defendant are less than accurate, then it was incumbent upon plaintiff to rebut them. Certainly, it would be an easy contradiction inasmuch as both of the alleged "no shows" took place in the law offices of the eligible injured person's chosen counsel.
I note the Court of Appeals' longstanding position that supports the foregoing proposition, to wit, that for the purpose of opposing a summary judgment motion, statements that may be subject to objections should not be precluded from consideration (see Phillips v Kantor & Co., 31 NY2d 307 [1972]).
Compliance with EUO requests is a condition precedent for the recovery of no-fault benefits.
Decision Date: July 22, 2010
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