Opinion
2018-1727 K C
07-10-2020
Jules Francois PARISIEN, M.D., as Assignee of Phillips, John, Appellant, v. METLIFE AUTO & HOME, Respondent.
The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for appellant. Bruno, Gerbino & Soriano, LLP (Nathan M. Shapiro of counsel), for respondent.
The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for appellant.
Bruno, Gerbino & Soriano, LLP (Nathan M. Shapiro of counsel), for respondent.
PRESENT: : MICHELLE WESTON, J.P., THOMAS P. ALIOTTA, BERNICE D. SIEGAL, JJ
ORDERED that the order is modified by providing that defendant's motion for summary judgment dismissing the complaint is denied; as so modified, the order is affirmed, without costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court entered May 10, 2018 which granted defendant's motion for summary judgment dismissing the complaint and denied plaintiff's cross motion for summary judgment.
Defendant denied the claims on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs). Plaintiff argues that defendant failed to comply with plaintiff's "timely and proper requests to [re]schedule the EUO to be held at a reasonably convenient location." Upon a review of the record, we find that a triable issue of fact exists as to whether the EUOs were scheduled to be held at a place which was "reasonably convenient" to plaintiff (see 11 NYCRR 65-3.5 [e] ). Consequently, defendant's motion for summary judgment dismissing the complaint should have been denied.
However, there is no merit to plaintiff's further assertion that defendant's motion should also have been denied on the ground that defendant had failed to establish that it possessed a reasonable basis for requesting the EUOs of plaintiff. This court has held on multiple occasions that an insurer "d[oes] not need to set forth the objective reasons for the requested EUOs as part of its prima facie showing of entitlement to judgment as a matter of law" ( Barakat Med. Care, P.C. v Nationwide Ins. Co. , 49 Misc 3d 147[A], 2015 NY Slip Op 51677[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; see New Way Med. Supply Corp. v State Farm Mut. Auto. Ins. Co. , 64 Misc 3d 136[A], 2019 NY Slip Op 51158[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; Gentlecare Ambulatory Anesthesia Servs. v Geico Ins. Co. , 57 Misc 3d 150[A], 2017 NY Slip Op 51518[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; Parisien v Metlife Auto & Home , 54 Misc 3d 143[A], 2017 NY Slip Op 50208[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; Palafox PT, P.C. v State Farm Mut. Auto . Ins. Co. , 49 Misc 3d 144[A], 2015 NY Slip Op 51653[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015] ).
Contrary to plaintiff's assertion, plaintiff's cross motion was properly denied, as the proof submitted by plaintiff failed to establish that the claims had not been timely denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co. , 25 NY3d 498 [2015] ), or that defendant had issued timely denial of claim forms that were conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co. , 78 AD3d 1168 [2010] ; Ave T MPC Corp. v Auto One Ins. Co. , 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011] ).
Accordingly, the order is modified by providing that defendant's motion for summary judgment dismissing the complaint is denied.
WESTON, J.P., ALIOTTA and SIEGAL, JJ., concur.