| Okslen Acupuncture, P.C. v Lancer Ins. Co. |
| 2013 NY Slip Op 50821(U) [39 Misc 3d 144(A)] |
| Decided on May 21, 2013 |
| Appellate Term, First 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
Defendant appeals from an order of the Civil Court of the City of New York, Bronx
County (Ruben Franco, J.), entered July 31, 2012, which denied its motion for summary
judgment dismissing the complaint.
Per Curiam.
Order (Ruben Franco, J.), entered July 31, 2012, affirmed, with $10 costs.
The action, seeking recovery of first-party no-fault benefits, is not ripe for summary disposition. The defendant insurer failed to establish, prima facie, that its requests for verification in the form of an examination under oath (EUO) were effective to toll its time to pay or deny the claims at issue. Defendant's EUO letters of July 18, 2006 and August 2, 2006 preceded its receipt of plaintiff's August 10, 2006 claim, and thus did not trigger the tolling of the 30-day period (see Sound Shore Med. Ctr. v. New York Cent. Mut. Fire Ins. Co., _ AD3d _, 2013 NY Slip Op 02390 [2nd Dept 2013]). Moreover, triable issues are raised as to whether, assuming defendant properly mailed its August 26, 2006 EUO request, it made the required follow-up request for verification (see 11 NYCRR 65-3.6[b]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: May 21, 2013