May 14, 2021

Ditmas Primary Med. Care, P.C. v Republic W. Ins. Co. (2021 NY Slip Op 50438(U))

Headnote

The main issue in this case was whether the denial of claim forms had been timely mailed, and whether the plaintiff's assignor had failed to appear for duly scheduled examinations under oath (EUOs). The court considered the affidavit submitted by the defendant, which established that the denial of claim forms had been timely mailed in accordance with standard office practices and procedures. Additionally, the affirmation submitted by defendant's attorney was sufficient to establish that the EUO scheduling letters had been timely mailed, and that plaintiff's assignor had failed to appear on the scheduled dates. The court held that the defendant had demonstrated its prima facie entitlement to summary judgment dismissing the complaint, and that the plaintiff had failed to raise a triable issue of fact in opposition to the defendant's motion. As a result, the court reversed the order and granted the defendant's motion for summary judgment dismissing the complaint.

Reported in New York Official Reports at Ditmas Primary Med. Care, P.C. v Republic W. Ins. Co. (2021 NY Slip Op 50438(U))

Ditmas Primary Med. Care, P.C. v Republic W. Ins. Co. (2021 NY Slip Op 50438(U)) [*1]

Ditmas Primary Med. Care, P.C. v Republic W. Ins. Co.

2021 NY Slip Op 50438(U) [71 Misc 3d 137(A)]

Decided on May 14, 2021

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This opinion is uncorrected and will not be published in the printed Official Reports.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 May 14, 2021

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
2019-374 K C

Ditmas Primary Medical Care, P.C., as Assignee of Joelle Davis, Respondent,
against
Republic Western Ins. Co., Appellant.

Bryan Cave, LLP (Matthew Sarles and Amanda C. Scuder of counsel), for appellant. Zara Javakov, P.C. (Zara Javakov of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Lorna J. McAllister, J.), entered January 24, 2019. The order denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order 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 an order of the Civil Court denying defendant’s motion which had sought summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for duly scheduled examinations under oath (EUOs).

The affidavit submitted by defendant established that the denial of claim forms had been timely mailed in accordance with defendant’s standard office practices and procedures (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). In addition, the affirmation submitted by defendant’s attorney was sufficient to establish that the EUO scheduling letters had been timely mailed (id.) and, since he was present in his office to conduct the EUO of plaintiff’s assignor on the scheduled dates, that plaintiff’s assignor had failed to appear on those dates. As a result, defendant demonstrated its prima facie entitlement upon defendant’s motion seeking summary judgment dismissing the complaint (see Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2014]; NL Quality Med., P.C. v GEICO Ins. Co., 68 Misc 3d 131[A], 2020 NY Slip Op 50997[A] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]). [*2]Plaintiff failed to raise a triable issue of fact in opposition to defendant’s motion.

Accordingly, the order 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: May 14, 2021