December 23, 2022

MSB Physical Therapy v Nationwide Ins. (2022 NY Slip Op 51381(U))

Headnote

The main issue in this case was whether the provider was entitled to recover first-party no-fault benefits, despite failing to appear for scheduled examinations under oath (EUOs). The court considered the fact that the defendant had filed a motion for summary judgment, arguing that the plaintiff had failed to appear for the EUOs and had therefore forfeited their right to the benefits. The court also considered the plaintiff's cross motion for summary judgment. The court held that the defendant's motion failed to establish that the claims had been timely denied after the assignor's failure to appear for the EUOs. Therefore, the defendant's motion for summary judgment was denied. However, the plaintiff also failed to demonstrate their entitlement to summary judgment, as they did not establish that the claims had not been timely denied, or that the denial of claim forms issued by the defendant were without merit. Therefore, the court modified the order to deny the defendant's motion for summary judgment, but also denied the plaintiff's cross motion for summary judgment.

Reported in New York Official Reports at MSB Physical Therapy v Nationwide Ins. (2022 NY Slip Op 51381(U))

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

MSB Physical Therapy, as Assignee of Crawford, Rayisha, Appellant,
against
Nationwide Ins., Respondent.

The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for appellant. Hollander Legal Group, P.C. (Allan S. Hollander of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Odessa Kennedy, J.), entered July 29, 2021. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

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 granting defendant’s motion for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs), and denying plaintiff’s cross motion for summary judgment.

Plaintiff correctly argues that defendant’s motion failed to establish that defendant had timely denied plaintiff’s claims after plaintiff’s assignor had allegedly failed to appear at both an initial and a follow-up EUO (see Ezra Supply, Inc. v Nationwide Affinity Ins. Co. of Am., — Misc 3d —, 2022 NY Slip Op 22383 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]; FJL Med. Servs., P.C. v Nationwide Ins., — Misc 3d —, 2022 NY Slip Op 51213[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]; Island Life Chiropractic Pain Care, PLLC v 21st Century Ins. Co., 74 Misc 3d 17 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]; Quality Health Supply Corp. v Nationwide Ins., 69 Misc 3d 133[A], 2020 NY Slip Op 51226[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]). As defendant did not demonstrate that it is [*2]not precluded from raising its proffered defense (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2009]), defendant’s motion for summary judgment dismissing the complaint should have been denied.

However, plaintiff failed to demonstrate its prima facie entitlement to summary judgment, as the proof submitted in support of its cross motion 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.

ALIOTTA, P.J., WESTON and TOUSSAINT, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 23, 2022