December 13, 2019

Wes Psychological Servs., P.C. v Travelers Ins. Co. (2019 NY Slip Op 52029(U))

Headnote

The main issue in this case was whether the defendant was entitled to summary judgment dismissing the complaint based on the plaintiff's failure to appear for examinations under oath (EUOs). The court considered the fact that the initial EUO request to the plaintiff was sent more than 30 days after the defendant had received the claims at issue, making the requests nullities as to those claims. The court ultimately held that the defendant failed to demonstrate that it was entitled to summary judgment dismissing the complaint based on the plaintiff's failure to appear for EUOs. Therefore, the judgment awarding the plaintiff the principal sum of $1,261.90 was affirmed.

Reported in New York Official Reports at Wes Psychological Servs., P.C. v Travelers Ins. Co. (2019 NY Slip Op 52029(U))

Wes Psychological Servs., P.C. v Travelers Ins. Co. (2019 NY Slip Op 52029(U)) [*1]

Wes Psychological Servs., P.C. v Travelers Ins. Co.

2019 NY Slip Op 52029(U) [66 Misc 3d 126(A)]

Decided on December 13, 2019

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This opinion is uncorrected and will not be published in the printed Official Reports.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 December 13, 2019

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

PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, BERNICE D. SIEGAL, JJ
2017-383 K C

Wes Psychological Services, P.C., as Assignee of Ashley Wattley, Respondent,
against
Travelers Insurance Company, Appellant.

Law Office of Aloy O. Ibuzor (Duane Frankson of counsel), for appellant. Law Office of Marina Josovich, P.C. (Marina Josovich of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (John J. Kelley, J.), entered November 18, 2016, deemed from a judgment of that court entered December 22, 2016 (see CPLR 5501 [c]). The judgment, entered pursuant to the November 18, 2016 order denying defendant’s motion for summary judgment dismissing the complaint and granting plaintiff’s cross motion for summary judgment, awarded plaintiff the principal sum of $1,261.90.

ORDERED that the judgment is affirmed, with $25 costs.

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 November 18, 2016, the Civil Court denied defendant’s motion and granted plaintiff’s cross motion. A judgment was subsequently entered on December 22, 2016, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

Contrary to defendant’s sole contention, defendant failed to demonstrate that it was entitled to summary judgment dismissing the complaint based on plaintiff’s failure to appear for EUOs, since the initial EUO request to plaintiff had been sent more than 30 days after defendant had received the claims at issue and, therefore, the requests were nullities as to those claims (see [*2]Neptune Med. Care, P.C. v Ameriprise Auto & Home Ins., 48 Misc 3d 139[A], 2015 NY Slip Op 51220[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; O & M Med., P.C. v Travelers Indem. Co., 47 Misc 3d 134[A], 2015 NY Slip Op 50476[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).

Accordingly, the judgment is affirmed.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 13, 2019