Synergy First Med., P.L.L.C. v Allstate Ins. Co.

[*1] Synergy First Med., P.L.L.C. v Allstate Ins. Co. 2016 NY Slip Op 51365(U) Decided on September 19, 2016 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 19, 2016
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-2740 Q C

Synergy First Medical, P.L.L.C., as Assignee of KALEEL GODDETT, Respondent,

against

Allstate Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Carmen R. Velasquez, J.), entered November 13, 2013. The order denied defendant's motion for summary judgment dismissing the complaint.

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

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court which denied defendant's motion for summary judgment dismissing the complaint.

To establish its prima facie entitlement to summary judgment dismissing a complaint on the ground that the plaintiff's assignor had failed to appear for an examination under oath (EUO), an insurer must demonstrate "as a matter of law that it twice duly demanded an [EUO] from the [provider's] assignor, . . . that the assignor twice failed to appear, and that the [insurer] issued a timely denial of the claims arising from the [provider's] treatment of the assignor" (Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2014]). Here, defendant failed to establish as a matter of law that its denial of claim forms had been properly and timely mailed (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). We reach no other issue.

Accordingly, the order is affirmed.

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

Decision Date: September 19, 2016