June 10, 2022

MSB Physical Therapy, P.C. v Nationwide Ins. (2022 NY Slip Op 50564(U))

Headnote

The court considered the appeal from an order of the Civil Court of the City of New York, Kings County, which granted the defendant's motion for summary judgment dismissing the complaint and denied the plaintiff's cross motion for summary judgment. The main issue decided in this case was whether the defendant needed to demonstrate, as part of its prima facie case, that the first examination under oath scheduling letter had been sent to the plaintiff's assignor within 15 days of the defendant's receipt of either the NF-2 or a claim received from another provider. The holding of the court was that the defendant did not need to demonstrate this as part of its prima facie case and that the order granting the defendant's motion for summary judgment and denying the plaintiff's cross motion for summary judgment was affirmed.

Reported in New York Official Reports at MSB Physical Therapy, P.C. v Nationwide Ins. (2022 NY Slip Op 50564(U))

MSB Physical Therapy, P.C. v Nationwide Ins. (2022 NY Slip Op 50564(U)) [*1]

MSB Physical Therapy, P.C. v Nationwide Ins.

2022 NY Slip Op 50564(U) [75 Misc 3d 136(A)]

Decided on June 10, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 June 10, 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
2019-1349 K C

MSB Physical Therapy, P.C., as Assignee of Reid, Shamel W., Appellant,
against
Nationwide Ins., Respondent.

The Rybak Firm, PLLC (Damin J. Toell 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 (Robin S. Garson, J.), dated June 28, 2019. 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 affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order which granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

Contrary to plaintiff’s sole appellate contention with respect to defendant’s motion for summary judgment, defendant did not need to demonstrate, as part of its prima facie case, that the first examination under oath scheduling letter had been sent to plaintiff’s assignor within 15 days of defendant’s receipt of either the NF-2 or a claim received from another provider (see Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2014]; Excel Prods., Inc. v Ameriprise Auto & Home, 71 Misc 3d 136[A], 2021 NY Slip Op 50435[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]; see also State Farm Mut. Auto. Ins. Co. v Surgicore of Jersey City, LLC, 195 AD3d 454 [2021]).

Accordingly, the order is affirmed.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: June 10, 2022