Opinion
12229 Index No. 153707/18 Case No. 2020-02270
10-29-2020
KEMPER INDEPENDENCE INSURANCE COMPANY, Plaintiff-Appellant, v. AB MEDICAL SUPPLY, INC., et al., Defendants-Respondents, Impulse Imaging, P.C., et al., Defendants.
Goldberg, Miller & Rubin, P.C., New York (Eli Shmulik of counsel), for appellant. The Rybak Firm, PLLC, Brooklyn (Maksim Leyvi of counsel), for respondents.
Goldberg, Miller & Rubin, P.C., New York (Eli Shmulik of counsel), for appellant.
The Rybak Firm, PLLC, Brooklyn (Maksim Leyvi of counsel), for respondents.
Renwick, J.P., Gesmer, Kern, Singh, JJ.
Order, Supreme Court, New York County (Lynn R. Kotler, J.), entered on or about December 10, 2019, which denied as premature plaintiff's motion for summary judgment declaring that it is not obligated to reimburse defendants-respondents for no-fault claims submitted in connection with a motor vehicle accident, unanimously affirmed, without costs.
Plaintiff no-fault insurer failed to provide the injured claimant's assignees with the "specific objective justification" for its request that the injured claimant submit to an examination under oath (EUO) to establish proof of claim ( 11 NYCRR 65–3.5 [e]; see American Tr. Ins. Co. v. Jaga Med. Servs., P.C. , 128 A.D.3d 441, 6 N.Y.S.3d 480 [1st Dept. 2015] ). As the criteria by which plaintiff determined that an EUO was required constitute facts unavailable to defendants for use in opposing plaintiff's motion, the motion was premature ( CPLR 3212[f] ). Moreover, as the court noted, plaintiff moved for summary judgment before any depositions had been conducted (see e.g. Blech v. West Park Presbyt. Church , 97 A.D.3d 443, 948 N.Y.S.2d 273 [1st Dept. 2012] ).
We have considered plaintiff's remaining contentions and find them unavailing.