STAR MEDICAL SERVICES v. EAGLE INSURANCE COMPANY (2004)

Order unanimously reversed without costs, plaintiff's motion for summary judgment granted and matter remanded to the court below for a calculation of statutory interest and an assessment of attorney's fees.

 In this action to recover first-party no-fault benefits for medical services rendered to its assignor, plaintiff health care provider established a prima facie entitlement to summary judgment by proof that it submitted the statutory claim form setting forth the fact and the amount of the loss sustained and that payment of no-fault benefits was overdue (see Insurance Law § 5106[a];  Mary Immaculate Hosp. v. Allstate Ins. Co., 5 A.D.3d 742, 774 N.Y.S.2d 564 [2004];  Amaze Med. Supply v. Eagle Ins. Co., 2 Misc.3d 128(A), 784 N.Y.S.2d 918, 2003 N.Y. Slip Op. 51701[U], 2003 WL 23310886 [App. Term, 2d & 11th Jud. Dists.];  A.B. Med. Servs. PLLC v. Lumbermens Mut. Cas. Co., 4 Misc.3d 86, 781 N.Y.S.2d 818 [App. Term, 2d & 11th Jud. Dists. 2004] ).

 In opposition to plaintiff's motion, defendant failed to raise triable issues of fact.   Defendant denied plaintiff's claim on the ground that plaintiff's assignor failed to appear for examinations under oath (EUOs).   The revised insurance regulations, which took effect on April 5, 2002, include EUOs in the Mandatory Personal Injury Protection Endorsement, providing that an eligible injured person submit to EUOs “as may reasonably be required” (11 NYCRR 65-1.1[d] ).  It is uncontroverted that plaintiff's claim was submitted subsequent to April 5, 2002.   However, “[c]onsistent with the Insurance Department's interpretation of the new regulation, which is entitled to great deference ․ the insurer must include the revised prescribed endorsement with new or renewal policies issued on or after April 5, 2002, and the claim rules are to be governed by the policy endorsement in effect” (S & M Supply v. State Farm Mut. Auto. Ins. Co., 4 Misc.3d 130(A), 791 N.Y.S.2d 873, 2004 N.Y. Slip Op. 50693[U], 2004 WL 1514330 [App. Term, 9th & 10th Jud. Dists.] ).   In the instant case, defendant's submissions failed to establish in the first instance that the insurance policy contained an endorsement authorizing EUOs (see S & M Supply Inc. v. Lancer Ins. Co., 4 Misc.3d 131(A), 791 N.Y.S.2d 873, 2004 N.Y. Slip Op. 50695[U], 2004 WL 1514381 [App. Term, 9th & 10th Jud. Dists.] ).   Accordingly, plaintiff's failure to appear for EUOs cannot constitute a basis for denial of the claim.

Therefore, plaintiff's motion for summary judgment should have been granted, and the matter is remanded for the calculation of statutory interest and attorney's fees pursuant to Insurance Law § 5106(a) and the regulations promulgated thereunder.