Opinion
No. 2010–2812 K C.
2012-07-13
J.M. CHIROPRACTIC SERVICES, PLLC as Assignee of Suezava Ellis, Respondent, v. STATE FARM MUTUAL INS. CO., Appellant.
Present: WESTON, J.P., RIOS and ALIOTTA, JJ.
Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered August 18, 2009. The order denied defendant's motion to dismiss the complaint.
ORDERED that the order is affirmed, without costs.
In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order denying its motion to dismiss the complaint based upon plaintiff's failure to appear at scheduled examinations under oath (EUOs).
To avail itself of the presumption of mailing, defendant must submit “either proof of actual mailing or ... a standard office practice and procedure designed to ensure that items are properly addressed and mailed” (Residential Holding Corp. v. Scottsdale Ins. Co., 286 A.D.2d 679 [2001] ). Actual mailing may be established by a proper “certificate [of mailing] or by [an] affidavit of one with personal knowledge” (Tracy v. William Penn Life Ins. Co. of NY, 234 A.D.2d 745, 748 [1996] ).
In the instant case, defendant failed to establish that the EUO scheduling letters had been timely mailed ( see St. Vincent's Hosp. of Richmond v. Government Empls. Ins. Co., 50 AD3d 1123 [2008];Delta Diagnostic Radiology, P.C. v. Chubb Group of Ins., 17 Misc.3d 16 [App Term, 2d & 11th Jud Dists 2007] ); thus, defendant did not demonstrate that the 30–day claim determination period (Insurance Department Regulations [11 NYCRR] § 65–3.8) had been tolled. Defendant's moving papers did not contain an affidavit from a person with knowledge attesting to the fact that the EUO scheduling letters had actually been mailed or describing the standard office practice or procedure used to ensure that such requests are properly mailed or addressed, although defendant did attach copies of the certificate of mailings ( cf. Delta Diagnostic Radiology, P.C., 17 Misc.3d 16;see All Boro Psychological Servs., P.C. v. State Farm Mut. Auto. Ins. Co., ––– Misc.3d ––––, 2012 N.Y. Slip Op –––– [Appeal No.2010–1767 K C], decided herewith] ). As a result, defendant failed to establish that its denial of claim form was timely and, thus, that it is not precluded from raising as a defense the failure of plaintiff's owner to appear for an EUO ( see Presbyterian Hosp. in City of N.Y. v. Maryland Cas. Co., 90 N.Y.2d 274 [1997] ).
Accordingly, the order is affirmed, albeit on a ground other than the one relied upon by the Civil Court. We note that, contrary to the court's determination, there is no requirement that EUO scheduling letters conspicuously highlight the information contained therein by use of, among other things, a bold font ( see Insurance Department Regulations [11 NYCRR] § 65–3.5[b], [e]; GLM Med., P.C. v. State Farm Mut. Auto. Ins. Co., 30 Misc.3d 137[A], 2011 N.Y. Slip Op 50194[U] [App Term, 2d, 11th & 13th Jud Dists 2011] ).