Great Health Care Chiropractic, P.C. v Unitrin Advantage Ins. Co.

[*1] Great Health Care Chiropractic, P.C. v Unitrin Advantage Ins. Co. 2015 NY Slip Op 50782(U) Decided on May 18, 2015 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 18, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-14 Q C

Great Health Care Chiropractic, P.C. as Assignee of ALANNA WARREN, Appellant,

against

Unitrin Advantage Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered November 21, 2012. The order denied plaintiff's motion for summary judgment and granted defendant's cross motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that defendant's cross motion for summary judgment dismissing the complaint is denied; as so modified, the order is affirmed, without 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 denied plaintiff's motion for summary judgment and granted defendant's cross motion for summary judgment dismissing the complaint.

As plaintiff correctly argues, neither the affidavit executed by defendant's claim representative nor the affirmation executed by the attorney from the law firm defendant had retained to schedule and conduct the examinations under oath (EUOs) of plaintiff's assignor, established actual mailing of the EUO scheduling letters or that they were mailed pursuant to a standard office practice or procedure. Consequently, defendant failed to establish that the EUO scheduling letters had been timely mailed to plaintiff's assignor (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). As a result, defendant was not entitled to summary judgment dismissing the complaint based on the assignor's alleged failure to appear at duly scheduled EUOs.

Contrary to plaintiff's contention, its motion for summary judgment was properly denied, as plaintiff's moving papers failed to demonstrate plaintiff's prima facie entitlement to judgment as a matter of law by establishing either that defendant had failed to pay or deny the claim within the requisite 30-day period (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d 33 [2013]), or that defendant had issued a timely denial of claim that was conclusory, vague or without merit as a matter of law (see Insurance Law § 5106 [a]; Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d, 11th & 13th Jud Dists 2011]).

Accordingly, the order is modified by providing that defendant's cross motion for summary judgment dismissing the complaint is denied.

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Decision Date: May 18, 2015