New Quality Med., P.C. v Allstate Ins. Co.

[*1] New Quality Med., P.C. v Allstate Ins. Co. 2015 NY Slip Op 51405(U) Decided on September 16, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 16, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-666 K C

New Quality Medical, P.C. as Assignee of Roman Gavrilov, Appellant,

against

Allstate Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Dawn Jimenez Salta, J.), entered January 18, 2013. The order granted defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, with $30 costs, and defendant's motion for summary judgment dismissing the complaint is denied.

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.

The denial of claim forms at issue were untimely on their face. Plaintiff argues, among other things, that defendant failed to establish its entitlement to summary judgment dismissing the complaint because defendant failed to demonstrate that it tolled its time to pay or deny the claims at issue by sending timely examination under oath (EUO) scheduling letters to plaintiff. A review of the record reveals that the EUO scheduling letters annexed in support of defendant's motion identified the dates of loss, claim numbers and the names of eligible injured persons to which these EUO scheduling letters were applicable. As the annexed EUO scheduling letters do not include the name of plaintiff's assignor, his date of loss or the claim number applicable to claims concerning him, defendant failed to establish as a matter of law that it tolled its time to pay or deny the claims at issue. In light of the foregoing, we need not pass upon plaintiff's remaining arguments.

Accordingly, the order is reversed and defendant's motion for summary judgment is denied.

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

Decision Date: September 16, 2015