Opinion
570039/06.
Decided July 14, 2006.
Defendant appeals from an order of the Civil Court, Bronx County (Julia I. Rodriguez, J.), dated October 11, 2005, which granted plaintiff's motion for summary judgment.
Order (Julia I. Rodriguez, J.) dated October 31, 2005, affirmed, with $10 costs.
PRESENT: McCOOE, J.P. DAVIS, GANGEL JACOB, JJ
Plaintiff, a health care provider seeking to recover no-fault benefits for services rendered to its assignor, established a prima facie entitlement to summary judgment by proof that it submitted its claim form setting forth the fact and the amount of the loss and that payment of benefits was overdue ( see Insurance Law § 5106[a]; Mary Immaculate Hosp. v. Allstate Ins. Co., 5 AD3d 742). In opposition, defendant failed to raise a triable issue of fact since its submissions did not establish that the insurance policy in effect contained an endorsement authorizing examinations under oath (EUO) pursuant to 11 NYCRR 65-1.1(d). While plaintiff's claim was submitted after the effective date of the revised insurance regulations which include EUOs in the Mandatory Personal Injury Protection Endorsement, the provisions of the revised regulations are inapplicable until the issuance of new or renewal policies containing the revised endorsement ( see SZ Med. Servs. P.C. v. State Farm Mut. Auto. Ins. Co., 9 Misc 3d 139 [A] [2005]). Nor may defendant base its right to an EUO on the provisions of the policy requiring the claimant's "cooperation" because the no-fault protection created by statute may not be qualified by the conditions of the liability portion of the insurance policy (see Utica Mut. Ins. Co. v. Timms, 293 AD2d 669, 670, lv dismissed 98 NY2d 727).
This constitutes the decision and order of the court.