November 13, 2020

NL Quality Med., P.C. v GEICO Ins. Co. (2020 NY Slip Op 51367(U))

Headnote

The court considered the fact that the plaintiff, NL Quality Medical, P.C., was seeking to recover assigned first-party no-fault benefits, and that defendant, GEICO Ins. Co., had moved for summary judgment to dismiss the complaint on the basis that the plaintiff had failed to appear for scheduled examinations under oath (EUOs). The main issue was whether the plaintiff had indeed failed to appear for the scheduled EUOs. The court held that the defendant had submitted sufficient proof to demonstrate that the plaintiff had failed to appear for the EUOs, and that the plaintiff had failed to rebut this showing. Additionally, the court found that the defendant had provided sufficient proof that the EUO scheduling letters and denial of claim forms had been timely mailed, and therefore granted the defendant's motion for summary judgment dismissing the complaint.

Reported in New York Official Reports at NL Quality Med., P.C. v GEICO Ins. Co. (2020 NY Slip Op 51367(U))

NL Quality Med., P.C. v GEICO Ins. Co. (2020 NY Slip Op 51367(U)) [*1]

NL Quality Med., P.C. v GEICO Ins. Co.

2020 NY Slip Op 51367(U) [69 Misc 3d 143(A)]

Decided on November 13, 2020

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This opinion is uncorrected and will not be published in the printed Official Reports.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 November 13, 2020

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

PRESENT: : THOMAS P. ALIOTTA, P.J., DAVID ELLIOT, BERNICE D. SIEGAL, JJ
2018-2263 K C

NL Quality Medical, P.C., as Assignee of Munno, Daniel, Respondent,
against
GEICO Ins. Co., Appellant.

Rivkin Radler, LLP (Stuart M. Bodoff and Cheryl F. Korman of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Cenceria P. Edwards, J.), entered August 24, 2018. 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 moved for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs), and plaintiff cross-moved for summary judgment. By order entered August 24, 2018, the Civil Court denied the motion and cross motion, but found, in effect pursuant to CPLR 3212 (g), that the only issue remaining for trial was defendant’s defense that plaintiff had failed to appear for the scheduled EUOs. Defendant appeals, as limited by its brief, from so much of the order as denied its motion.

The proof submitted by defendant was sufficient to demonstrate that plaintiff had failed to appear for the EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; Gentlecare Ambulatory Anesthesia Servs. v GEICO Ins. Co., 59 Misc 3d 152[A], 2018 NY Slip Op 50864[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]), which showing plaintiff failed to rebut. To the extent plaintiff challenges the Civil Court’s implicit CPLR 3212 (g) findings in favor of defendant with respect to the mailing of the EUO [*2]scheduling letters and denial of claim forms, the proof submitted by defendant was sufficient to demonstrate that the EUO scheduling letters and denial of claim forms had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]).

Accordingly, the order, insofar as appealed from, is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.

ALIOTTA, P.J., ELLIOT and SIEGAL, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 13, 2020