December 22, 2017

Careful Complete Med., P.C. v Delos Ins. Co. (2017 NY Slip Op 51867(U))

Headnote

The court considered the fact that a provider was seeking to recover assigned first-party no-fault benefits, and that the complaint had been dismissed by the lower court following a motion for summary judgment by the defendant. The main issue decided was whether the defendant was entitled to summary judgment based on the plaintiff's failure to appear for examinations under oath (EUOs). The court held that the defendant failed to demonstrate that it was entitled to summary judgment, as the initial EUO request had been sent more than 30 days after the defendant had received the claims at issue, making the requests nullities as to those claims. Therefore, the judgment was reversed, the order was vacated, and the defendant's motion for summary judgment dismissing the complaint was denied.

Reported in New York Official Reports at Careful Complete Med., P.C. v Delos Ins. Co. (2017 NY Slip Op 51867(U))

Careful Complete Med., P.C. v Delos Ins. Co. (2017 NY Slip Op 51867(U)) [*1]

Careful Complete Med., P.C. v Delos Ins. Co.

2017 NY Slip Op 51867(U) [58 Misc 3d 141(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This opinion is uncorrected and will not be published in the printed Official Reports.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
2015-896 K C

Careful Complete Medical, P.C., as Assignee of Lonnie Wheeler, Appellant,
against
Delos Insurance Company, Respondent.

Gary Tsirelman, P.C. (Irena Golodkeyer, Esq.), for appellant. McGivney and Kluger, P.C., for respondent (no brief filed).

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Pamela L. Fisher, J.), entered November 21, 2014. The judgment, entered pursuant to an order of that court entered May 23, 2012 granting defendant’s motion for summary judgment, dismissed the complaint.

ORDERED that the judgment is reversed, with $30 costs, the order entered May 23, 2012 is vacated, and defendant’s motion for summary judgment dismissing the complaint is denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from a judgment of the Civil Court which dismissed the complaint pursuant to a prior order of that court granting a motion by defendant for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs).

Plaintiff correctly argues on appeal that defendant failed to demonstrate that it was entitled to summary judgment dismissing the complaint based on the failure to appear for EUOs, as the initial EUO request 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 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. [*2]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 reversed, the order entered May 23, 2012 is vacated, and defendant’s motion for summary judgment dismissing the complaint is denied.

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

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