September 9, 2022

Forest Park Acupuncture, P.C. v Nationwide Prop. & Cas. Ins. Co. (2022 NY Slip Op 50914(U))

Headnote

The court considered that the defendant had sought summary judgment to dismiss the complaint on the grounds that the plaintiff's assignor failed to appear for duly scheduled examinations under oath (EUOs). The Civil Court found that the plaintiff had established the timely mailing of the bills and the defendant established the timely mailing of its denials, and limited the issue for trial to defendant's "EUO no show defense as to the March 27, 2017 date." The main issue decided was whether the plaintiff's assignor's failure to appear for scheduled EUOs was grounds for summary judgment to dismiss the complaint. The holding of the court was that the order denying the defendant's motion for summary judgment was reversed, and the defendant's motion for summary judgment dismissing the complaint was granted.

Reported in New York Official Reports at Forest Park Acupuncture, P.C. v Nationwide Prop. & Cas. Ins. Co. (2022 NY Slip Op 50914(U))

Forest Park Acupuncture, P.C. v Nationwide Prop. & Cas. Ins. Co. (2022 NY Slip Op 50914(U)) [*1]

Forest Park Acupuncture, P.C. v Nationwide Prop. & Cas. Ins. Co.

2022 NY Slip Op 50914(U) [76 Misc 3d 132(A)]

Decided on September 9, 2022

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This opinion is uncorrected and will not be published in the printed Official Reports.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 September 9, 2022

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

PRESENT: : THOMAS P. ALIOTTA, P.J., WAVNY TOUSSAINT, DONNA-MARIE E. GOLIA, JJ
2020-682 K C

Forest Park Acupuncture, P.C., as Assignee of Jose Enzo, Respondent,
against
Nationwide Property & Casualty Insurance Co., Appellant.

Hollander Legal Group, P.C. (Allan S. Hollander of counsel), for appellant. Zara Javakov, P.C. (Zara Javakov of counsel), for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Consuelo Mallafre Melendez, J.), entered January 9, 2020. The order, insofar as appealed from and as limited by the brief, denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order of the Civil Court as denied defendant’s motion which had sought summary judgment dismissing the complaint on the ground that plaintiff’s assignor failed to appear for duly scheduled examinations under oath (EUOs). The Civil Court found, in effect pursuant to CPLR 3212 (g), that plaintiff established the timely mailing of the bills and defendant established the timely mailing of its denials, and limited the issue for trial to defendant’s “EUO no show defense as to the March 27, 2017 date.”

For the reasons stated in Forest Park Acupuncture, P.C., as Assignee of Jose Enzo v Nationwide Prop. & Cas. Ins. Co. (— Misc 3d —, 2022 NY Slip Op — [appeal No. 2019-683 K C], decided herewith), the order, insofar as appealed from, is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: September 9, 2022