Great Health Care Chiropractic, P.C. v. Travelers Ins. Co.

Full title: GREAT HEALTH CARE CHIROPRACTIC, P.C. as Assignee of Bernard Fitzgerald…

Court: Supreme Court, Appellate Term, Second Dept., 2, 11 & 13 Judicial Dist.

Date published: Nov 12, 2015

2015 N.Y. Slip Op. 51665 (N.Y. App. Term 2015)

28 N.Y.S.3d 648

Opinion

2013-1460 K C

11-12-2015

Great Health Care Chiropractic, P.C. as Assignee of BERNARD FITZGERALD, Appellant, v. Travelers Insurance Company, Respondent.

PESCE, P.J., ALIOTTA and SOLOMON, JJ.

PRESENT: :

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered April 30, 2013. The order granted defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, with $25 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, defendant moved for summary judgment dismissing the complaint, alleging that the claim at issue had been timely and properly denied on the ground that plaintiff had failed to appear at duly scheduled examinations under oath (EUOs). Plaintiff opposed the motion. By order entered April 30, 2013, the Civil Court granted defendant's motion.

Pursuant to the No-Fault Regulations, "any additional verification required by the insurer to establish proof of claim shall be requested within 15 business days of receipt of the [NF-3]" (11 NYCRR 65-3.5 [b] [emphasis added]). This rule applies to requests for EUOs (see e.g. Longevity Medical Supply, Inc. v IDS Property & Cas. Ins. Co., 44 Misc 3d 137[A], 2014 NY Slip Op 51244[U] [App Term, 2d, 11th & 13th Jud Dists 2014])" (O & M Med., P.C. v Travelers Indem. Co., 47 Misc 3d 134[A], 2015 NY Slip Op 50476[U] [App Term, 2d, 11th & 13th Jud Dists 2015]). As defendant's moving papers reflect that defendant's first EUO scheduling letter was mailed about 50 days after defendant had received the claim at issue in this action, defendant failed to demonstrate that it had properly denied the claim based upon plaintiff's failure to comply with a condition precedent to coverage (see O & M Med., P.C., 47 Misc 3d 134[A], 2015 NY Slip Op 50476[U]; St. Vincent Med. Care, P.C. v Travelers Ins. Co., 26 Misc 3d 144[A], 2010 NY Slip Op 50446[U] [App Term, 2d, 11th & 13th Jud Dists 2010]).

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

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

Decision Date: November 12, 2015