November 30, 2018

Acupuncture Now, P.C. v American Commerce Ins. Co. (2018 NY Slip Op 51768(U))

Headnote

The court considered an order from the Civil Court of the City of New York, Kings County, which granted the defendant's motion for summary judgment dismissing the complaint, based on the plaintiff's failure to appear for duly scheduled examinations under oath (EUOs). The main issue decided was whether the defendant's proof was sufficient to establish the plaintiff's nonappearance at the EUOs and whether the defendant was entitled to summary judgment dismissing the first cause of action based on the plaintiff's failure to appear for the EUOs. The holding was that the branch of defendant's motion seeking summary judgment dismissing the first cause of action is denied, as the initial EUO request had been sent more than 30 days after the defendant had received the claim underlying that cause of action, making the request a nullity. Therefore, the order was modified by providing that the branch of defendant's motion seeking summary judgment dismissing the first cause of action is denied.

Reported in New York Official Reports at Acupuncture Now, P.C. v American Commerce Ins. Co. (2018 NY Slip Op 51768(U))

Acupuncture Now, P.C. v American Commerce Ins. Co. (2018 NY Slip Op 51768(U)) [*1]

Acupuncture Now, P.C. v American Commerce Ins. Co.

2018 NY Slip Op 51768(U)

Decided on November 30, 2018

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This opinion is uncorrected and will not be published in the printed Official Reports.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 30, 2018

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

PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2016-742 K C

Acupuncture Now, P.C., as Assignee of Davis, Ebony, Appellant,
against
American Commerce Insurance Company, Respondent.

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Bruno, Gerbino & Soriano, LLP (Nathan Shapiro of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered January 20, 2016. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that the branch of defendant’s motion seeking summary judgment dismissing the first cause of action 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, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs).

Contrary to plaintiff’s argument, defendant’s proof was sufficient to establish plaintiff’s nonappearance at an initial and follow-up EUO (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).

However, plaintiff correctly argues that defendant failed to demonstrate that it was entitled to summary judgment dismissing the first cause of action based on plaintiff’s failure to appear for EUOs, as the initial EUO request had been sent more than 30 days after defendant had received the claim underlying that cause of action, and, therefore, the request was a nullity as to that claim (see Neptune Med. Care, P.C. v Ameriprise Auto & Home Ins., 48 Misc 3d 139[A], [*2]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 order is modified by providing that the branch of defendant’s motion seeking summary judgment dismissing the first cause of action is denied.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 30, 2018