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Compas Med., P.C. v ELRAC, Inc.
2015 NY Slip Op 50675(U) [47 Misc 3d 143(A)]
Decided on May 1, 2015
Appellate Term, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on May 1, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : WESTON, J.P., SOLOMON and ELLIOT, JJ.
2013-145 K C

Compas Medical, P.C. as Assignee of ANTHONY ADEWUMI, Respondent,

against

ELRAC, Inc., Appellant.


Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered October 24, 2012, deemed from a judgment of the same court entered December 20, 2012 (see CPLR 5501 [c]). The judgment, entered pursuant to the October 24, 2012 order granting plaintiff's motion for summary judgment and denying defendant's cross motion for summary judgment dismissing the complaint, awarded plaintiff the principal sum of $6,318.67.

ORDERED that the judgment is reversed, without costs, so much of the order entered October 24, 2012 as granted plaintiff's motion for summary judgment is vacated, and plaintiff's motion is denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court entered October 24, 2012 which granted plaintiff's motion for summary judgment and denied defendant's cross motion for summary judgment dismissing the complaint. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

Inasmuch as defendant raises no issue on appeal with respect to plaintiff's prima facie case, we do not pass upon the propriety of the Civil Court's determination with respect thereto.

The affidavit submitted by defendant established that the denial of claim forms had been mailed on the dates alleged in accordance with defendant's standard office practices and procedures (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]).

Defendant alleges that it received the claims underlying the first and eighth causes of action on April 5, 2010 and that it denied those claims on May 13, 2010, which was more than 30 days later. While defendant demonstrated that it had mailed what it denominated as "verification/delay request(s)" on April 5, 2010 and May 7, 2010, those letters were insufficient to constitute verification requests (see Nyack Hosp. v Encompass Ins. Co., 23 AD3d 535 [2005]; Points of Health Acupuncture, P.C. v Lancer Ins. Co., 28 Misc 3d 133[A], 2010 NY Slip Op 51338[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). Consequently, defendant failed to prove, as a matter of law, that it had tolled its 30-day period to pay or deny these claims (see 11 [*2]NYCRR 65-3.8 [a]), and the court properly denied the branches of defendant's cross motion seeking summary judgment dismissing the first and eighth causes of action. However, defendant did submit a letter dated April 19, 2010 which scheduled plaintiff's assignor for an examination under oath (EUO), as well as proof that plaintiff's assignor had appeared for the scheduled EUO. While defendant did not submit proof that the EUO scheduling letter had been timely mailed, we find that defendant's submissions are sufficient to raise a triable issue of fact as to whether the time to pay or deny the claims underlying the first and eighth causes had been tolled, and therefore whether the denials were timely. Furthermore, under the circumstances presented, plaintiff was also not entitled to summary judgment on the remaining causes of action, as defendant demonstrated that the claims underlying those causes of action had been timely denied. However, the branches of defendant's cross motion seeking summary judgment dismissing the second through seventh causes of action, on the ground that the services billed for had not been rendered, were properly denied, albeit for a different reason than that advanced by the Civil Court. Contrary to the Civil Court's finding, the certified EUO transcript relied upon by defendant was admissible (American States Ins. Co. v Huff, 119 AD3d 478 [2014]). Nevertheless, on this record, we find the existence of a triable issue of fact as to whether the services billed for were rendered.

Accordingly, the judgment is reversed, so much of the order entered October 24, 2012 as granted plaintiff's motion for summary judgment is vacated, and plaintiff's motion is denied.

Weston, J.P., Solomon and Elliot, JJ., concur.


Decision Date: May 01, 2015