May 6, 2022

Psychology After Acc., P.C. v Nationwide Ins. Co. of N.Y. (2022 NY Slip Op 50366(U))

Headnote

The court considered that the defendant had failed to establish that it had timely denied the plaintiff's claims after the plaintiff failed to appear for two scheduled examinations under oath (EUOs). The main issue decided was whether the defendant was justified in seeking summary judgment dismissing the complaint based on the plaintiff's failure to appear for the EUOs. The holding of the court was that the defendant failed to demonstrate that it was not precluded from raising its defense and therefore, the motion for summary judgment dismissing the complaint was properly denied. Additionally, the court held that the plaintiff also failed to demonstrate its 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 or that the defendant had issued timely denial of claim forms. Therefore, the order was modified by providing that plaintiff's cross motion for summary judgment was denied.

Reported in New York Official Reports at Psychology After Acc., P.C. v Nationwide Ins. Co. of N.Y. (2022 NY Slip Op 50366(U))

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

Psychology After Accident, P.C., as Assignee of Timothy Jenkins Simmons, Bianca Lawrence, Yolanda Drouillard, Maria Gonzalez and Mercedes Gonzalez, Respondent,
against
Nationwide Insurance Company of New York, Appellant.

Hollander Legal Group, P.C. (Allan S. Hollander of counsel), for appellant. Zara Javakov, Esq., P.C. (Victoria Tarasova of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Matthew P. Blum, J.), entered February 18, 2020. The order denied defendant’s motion for summary judgment dismissing the complaint and granted plaintiff’s cross motion for summary judgment.

ORDERED that the order is modified by providing that plaintiff’s cross motion for summary judgment 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, defendant appeals from an order of the Civil Court denying defendant’s motion which had sought summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs), and granting plaintiff’s cross motion for summary judgment.

Contrary to defendant’s contention, defendant failed to establish that it had timely denied plaintiff’s claims after plaintiff failed to appear at two duly scheduled EUOs (see 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 was not precluded from raising its proffered defense (see [*2]Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2009]), defendant’s motion for summary judgment dismissing the complaint was properly denied.

Plaintiff failed to demonstrate its prima facie entitlement to summary judgment, as the proof submitted in support of its cross motion failed to establish either that the claims at issue had not been timely denied 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 plaintiff’s cross motion for summary judgment is denied.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: May 6, 2022