Bay LS Med. Supplies, Inc. v. Allstate Ins. Co.

Appellate Terms of the Supreme Court of New York

Bay LS Med. Supplies, Inc. v. Allstate Ins. Co.

CourtAppellate Terms of the Supreme Court of New York

DecidedMarch 11, 2016

Docket2016 NYSlipOp 50319(U)

StatusPublished

This text of Bay LS Med. Supplies, Inc. v. Allstate Ins. Co. (Bay LS Med. Supplies, Inc. v. Allstate Ins. Co.) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Bay LS Med. Supplies, Inc. v. Allstate Ins. Co., (N.Y. Ct. App. 2016).

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Opinion

Bay LS Medical Supplies, Inc., as Assignee of Pablo Lozano-reyes, Respondent,

against

Allstate Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered November 1, 2013. The order granted plaintiff's motion for summary judgment and denied defendant's cross motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, with $30 costs, plaintiff's motion for summary judgment is denied, and defendant's cross motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, and defendant cross-moved for summary

judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs). Defendant appeals from an order of the Civil Court granting plaintiff's motion and denying defendant's cross motion.

Defendant established that it had timely and properly mailed (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) its EUO scheduling letters and its denial of claim forms, which denied the claims on the ground that plaintiff had failed to appear at duly scheduled EUOs. Although the Civil Court found that defendant had established plaintiff's nonappearances, the court held, as plaintiff argues, that defendant's EUO scheduling letters were defective. However, under the circumstances presented, as plaintiff does not claim to have responded in any way to defendant's EUO requests, plaintiff's objections regarding the EUO scheduling letters will not be heard (see Eagle Surgical Supply, Inc. v Allstate Ins. Co., 46 Misc 3d 128[A], 2014 NY Slip Op 51798[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]; Viviane Etienne Med. Care, P.C. v State Farm Mut. Auto. Ins. Co., 35 Misc 3d 127[A], 2012 NY Slip Op 50579[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]). In light of the foregoing, defendant's cross motion should have been granted. We pass on no other issue.

Accordingly, the order is reversed, plaintiff's motion for summary judgment is denied, and defendant's cross motion for summary judgment dismissing the complaint is granted.

Weston, J.P., Pesce and Aliotta, JJ., concur.

Decision Date: March 11, 2016

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Bay LS Medical Supplies, Inc., as Assignee of Pablo Lozano-reyes, Respondent,

against

Allstate Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered November 1, 2013. The order granted plaintiff's motion for summary judgment and denied defendant's cross motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, with $30 costs, plaintiff's motion for summary judgment is denied, and defendant's cross motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, and defendant cross-moved for summary

judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs). Defendant appeals from an order of the Civil Court granting plaintiff's motion and denying defendant's cross motion.

Defendant established that it had timely and properly mailed (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) its EUO scheduling letters and its denial of claim forms, which denied the claims on the ground that plaintiff had failed to appear at duly scheduled EUOs. Although the Civil Court found that defendant had established plaintiff's nonappearances, the court held, as plaintiff argues, that defendant's EUO scheduling letters were defective. However, under the circumstances presented, as plaintiff does not claim to have responded in any way to defendant's EUO requests, plaintiff's objections regarding the EUO scheduling letters will not be heard (see Eagle Surgical Supply, Inc. v Allstate Ins. Co., 46 Misc 3d 128[A], 2014 NY Slip Op 51798[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]; Viviane Etienne Med. Care, P.C. v State Farm Mut. Auto. Ins. Co., 35 Misc 3d 127[A], 2012 NY Slip Op 50579[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]). In light of the foregoing, defendant's cross motion should have been granted. We pass on no other issue.

Accordingly, the order is reversed, plaintiff's motion for summary judgment is denied, and defendant's cross motion for summary judgment dismissing the complaint is granted.

Weston, J.P., Pesce and Aliotta, JJ., concur.

Decision Date: March 11, 2016

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