December 22, 2017

Easy Care Acupuncture, P.C. v 21 Century Advantage Ins. Co. (2017 NY Slip Op 51879(U))

Headnote

The court considered the appellant's appeal from an order of the Civil Court which granted the respondent's motion for summary judgment dismissing the complaint. The main issue decided was whether the proof submitted by the respondent was sufficient to demonstrate that the appellant's assignor had failed to appear for scheduled examinations under oath (EUOs). The court held that the proof submitted by the respondent was indeed sufficient to demonstrate that the appellant's assignor had failed to appear for the scheduled EUOs, and affirmed the order granting the respondent's motion for summary judgment dismissing the complaint.

Reported in New York Official Reports at Easy Care Acupuncture, P.C. v 21 Century Advantage Ins. Co. (2017 NY Slip Op 51879(U))

Easy Care Acupuncture, P.C. v 21 Century Advantage Ins. Co. (2017 NY Slip Op 51879(U)) [*1]

Easy Care Acupuncture, P.C. v 21 Century Advantage Ins. Co.

2017 NY Slip Op 51879(U) [58 Misc 3d 142(A)]

Decided on December 22, 2017

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This opinion is uncorrected and will not be published in the printed Official Reports.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 22, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2015-1090 K C

Easy Care Acupuncture, P.C., as Assignee of Pinto Thompson, Appellant,
against
21 Century Advantage Ins. Co., Respondent.

Gary Tsirelman, P.C. (Irena Golodkeyer, Esq.), for appellant. Law Offices of Buratti, Rothenberg & Burns (Sharon Brennan, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Theresa M. Ciccotto, J.), entered February 5, 2015. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with $25 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 based on plaintiff’s assignor’s failure to appear for duly scheduled examinations under oath (EUOs).

Contrary to plaintiff’s argument, the proof submitted by defendant was sufficient to demonstrate that plaintiff’s assignor had failed to appear for the scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; Active Chiropractic, P.C. v Praetorian Ins. Co., 43 Misc 3d 134[A], 2014 NY Slip Op 50634[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]).

Plaintiff’s remaining contention lacks merit (see e.g. T & J Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co., 47 Misc 3d 130[A], 2015 NY Slip Op 50406[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; Metro Health Prods., Inc. v State Farm Mut. Auto. Ins. Co., 47 Misc 3d 127[A], 2015 NY Slip Op 50402[U] [App Term, 2d Dept, 2d, 11th & 13th Jud [*2]Dists 2015]).

Accordingly, the order is affirmed.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 22, 2017