September 22, 2017

Laga v American Commerce Ins. Co. (2017 NY Slip Op 51254(U))

Headnote

The main issue in this case was whether the provider had failed to appear for scheduled examinations under oath (EUOs) and if this constituted a valid reason to deny the claims for assigned first-party no-fault benefits. The court considered the affirmation submitted by the defendant and found it was sufficient to establish the plaintiff's failure to appear for the EUOs. As a result, the court denied the branches of the plaintiff's motion seeking summary judgment on the second through fourth causes of action and granted the branches of the defendant's cross motion seeking summary judgment dismissing those causes of action. The holding of the case was that the order, insofar as appealed from, was affirmed, with costs.

Reported in New York Official Reports at Laga v American Commerce Ins. Co. (2017 NY Slip Op 51254(U))

Laga v American Commerce Ins. Co. (2017 NY Slip Op 51254(U)) [*1]

Laga v American Commerce Ins. Co.

2017 NY Slip Op 51254(U) [57 Misc 3d 134(A)]

Decided on September 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This opinion is uncorrected and will not be published in the printed Official Reports.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 September 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
2014-2015 Q C

Adelaida M. Laga, PT, as Assignee of Noel, Jocelyn, Appellant,
against
American Commerce Insurance Company, Respondent.

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Bruno, Gerbino & Soriano, LLP (Mitchell L. Kaufman, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered July 30, 2014. The order, insofar as appealed from, denied the branches of plaintiff’s motion seeking summary judgment on the second through fourth causes of action and granted the branches of defendant’s cross motion seeking summary judgment dismissing those causes of action.

ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from so much of an order of the Civil Court as denied the branches of plaintiff’s motion seeking summary judgment on the second through fourth causes of action, and granted the branches of defendant’s cross motion seeking summary judgment dismissing those causes of action on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs).

Contrary to plaintiff’s only argument as to defendant’s cross motion, the affirmation submitted by defendant was sufficient to establish plaintiff’s failure to appear for the EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).

Accordingly, the order, insofar as appealed from, is affirmed.

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

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