MEDICAL v. AMERIPRISE INSURANCE COMPANY (2020)

Supreme Court, Appellate Term, New York,

A.C. MEDICAL, P.C., as Assignee of Jorge Palacios, Respondent, v. AMERIPRISE INSURANCE COMPANY, Appellant.

2018-2565 K C

Decided: November 13, 2020

PRESENT: : THOMAS P. ALIOTTA, P.J., DAVID ELLIOT, BERNICE D. SIEGAL, JJ

Bruno, Gerbino. Soriano & Aitken, LLP (Nathan M. Shapiro of counsel), for appellant. Law Office of Melissa Betancourt, P.C. (Melissa Betancourt of counsel), for respondent.

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 denying defendant's motion which had sought summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs).

Defendant contends that its initial EUO scheduling letter tolled defendant's time to pay or deny all of the claims at issue (see 11 NYCRR 65-3.5 [b]; ARCO Med. NY, P.C. v Lancer Ins. Co., 34 Misc 3d 134[A], 2011 NY Slip Op 52382[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011] ), that the toll was maintained by timely follow-up scheduling letters (see 11 NYCRR 65-3-6 [b) and that defendant had timely denied plaintiff's claims (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Upon a review of the record, we find that defendant's motion failed to establish, as a matter of law, that defendant had timely denied plaintiff's claims after plaintiff had failed to appear at both an initial and a follow-up EUO.

Accordingly, the order is affirmed.

ALIOTTA, P.J., ELLIOT and SIEGAL, JJ., concur.

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