July 21, 2017

Mind & Body Acupuncture, P.C. v Global Liberty Ins. Co. of NY (2017 NY Slip Op 50957(U))

Headnote

The court considered the appeal of the Civil Court of the City of New York, Kings County, which had granted the defendant's motion for summary judgment dismissing the complaint by Mind & Body Acupuncture, P.C., as assignee of Jessica Torres, seeking to recover assigned first-party no-fault benefits. The defendant alleged that the claims had been properly denied because the plaintiff's assignor had failed to appear at duly scheduled examinations under oath (EUOs). However, the defendant failed to establish that the initial and follow-up EUO scheduling letters had been timely mailed, and therefore failed to demonstrate that the EUOs had been properly scheduled. Consequently, the defendant was not entitled to summary judgment dismissing the complaint. The Appellate Term, Second Department reversed the order and denied the defendant's motion for summary judgment.

Reported in New York Official Reports at Mind & Body Acupuncture, P.C. v Global Liberty Ins. Co. of NY (2017 NY Slip Op 50957(U))

Mind & Body Acupuncture, P.C. v Global Liberty Ins. Co. of NY (2017 NY Slip Op 50957(U)) [*1]

Mind & Body Acupuncture, P.C. v Global Liberty Ins. Co. of NY

2017 NY Slip Op 50957(U) [56 Misc 3d 134(A)]

Decided on July 21, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 July 21, 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
2014-1704 K C

Mind & Body Acupuncture, P.C., as Assignee of Torres, Jessica, Appellant,
against
Global Liberty Ins. Co. of NY, Respondent.

Kopelevich & Feldsherova, P.C. (Galina Feldsherova, Esq.), for appellant. Law Office of Nancy Linden, for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Devin P. Cohen, J.), entered May 14, 2014. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, with $30 costs, 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, defendant moved for summary judgment dismissing the complaint, alleging that the claims at issue had been timely and properly denied on the ground that plaintiff’s assignor had failed to appear at duly scheduled examinations under oath (EUOs). Plaintiff opposed the motion. By order entered May 14, 2014, the Civil Court granted defendant’s motion.

In support of its motion, defendant failed to establish that the initial and follow-up EUO scheduling letters had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). As a result, defendant failed to demonstrate that the EUOs had been properly scheduled and, thus, that plaintiff’s assignor had failed to appear at duly scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 722 [2006]). Consequently, defendant is not entitled to summary judgment dismissing the complaint.

Accordingly, the order is reversed 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: July 21, 2017