Opinion
2002-1801 K C.
Decided October 21, 2003.
Appeal by plaintiff from an order of the Civil Court, Kings County (K. Yellen, J.), entered on October 17, 2002, which denied its motion for summary judgment.
PRESENT: PESCE, P.J. ARONIN and PATTERSON, JJ.
Order unanimously reversed without costs, plaintiff's motion for summary judgment granted in the principal sum of $3,486.96 and matter remanded to the court below for a calculation of statutory interest and an assessment of attorney's fees.
Plaintiff sues to recover first party no-fault benefits for medical and chiropractic services it provided to the injured assignor in the sum of $3,486.96. In our opinion, plaintiff's motion for summary judgment should have been granted.
Under the circumstances presented, plaintiff is entitled to recover the claims in the sums of $290.64 and $154.30 inasmuch as defendant failed to pay or deny said claims. The plaintiff is also entitled to recover for the claims in the sums of $585.64 and $182.18. The Insurance Regulation in effect in 2001, when the medical and chiropractic services were rendered, was section 65.12 (11 NYCRR 65.12) which stated that the eligible injured person shall submit to medical examinations when, and as often as, the company may reasonably require. There was no provision requiring the eligible person to appear for an examination under oath until the following year ( 11 NYCRR 65-3.5 [e]; Bronx Medical Services P.C. ex rel. Rivera v. Lumbermens Mut. Cas. Co., NYLJ, June 13, 2003 [App Term, 1st Dept]).
Accordingly, defendant's request for an examination under oath did not toll the 30-day period within which defendant was required to pay or deny the claim. Under the circumstances, defendant's denial was untimely.
The plaintiff is likewise entitled to recover for bills in the sums of $1,972.08 and $302.12. Even though the defendant denies receiving said claims, the plaintiff's practice and billing manager submitted an affidavit in which she stated that she mailed the NF-3 forms therefor from each of the providers to defendant on May 4, 2001. She attached a postmarked receipt dated May 4, 2001.
The matter is accordingly remanded to the court below for a calculation of the statutory interest and an assessment of attorney's fees ( see Insurance Law § 5106 [a]; 11 NYCRR 65-3.9 [a]; 65-3.10 [a]; see also St. Clare's Hosp. v. Allstate Ins. Co., 215 AD2d 641).