August 12, 2022

ACH Chiropractic, P.C. v Nationwide Ins. (2022 NY Slip Op 50795(U))

Headnote

The court considered the facts that the plaintiff was seeking to recover assigned first-party no-fault benefits and that the defendant had motioned for summary judgment dismissing the complaint on the grounds that the plaintiff's assignor had failed to appear for examinations under oath (EUOs). The main issue decided was whether the insurer had demonstrated, as a matter of law, that it had twice duly demanded an EUO from the assignor, that the assigner had twice failed to appear, and that the denial of the claims was timely. The court held that the insurer had sufficiently established that the EUO scheduling letters had been timely mailed in accordance with the insurer's standard office practices and procedures, and affirmed the order granting the defendant's motion for summary judgment and denying the plaintiff's cross motion for summary judgment.

Reported in New York Official Reports at ACH Chiropractic, P.C. v Nationwide Ins. (2022 NY Slip Op 50795(U))

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

ACH Chiropractic, P.C., as Assignee of Reid, Shamel W., Appellant,
against
Nationwide Ins., Respondent.

Hollander Legal Group, P.C. (Damin J. Toell of counsel), for appellant. The Rybak Firm, PLLC (Allan S. Hollander of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Carolyn Walker-Diallo, J.), entered August 22, 2019. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

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 on the ground that plaintiff’s assignor had failed to appear for duly scheduled examinations under oath (EUOs), and denied plaintiff’s cross motion for summary judgment.

To establish its prima facie entitlement to summary judgment dismissing a complaint on the ground that a provider’s assignor had failed to appear for an EUO, an insurer must demonstrate, as a matter of law, that it had twice duly demanded an EUO from the assignor, that the assignor had twice failed to appear, and that the insurer had issued a timely denial of the claims (see Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2014]; Parisien v Metlife Auto & [*2]Home, 54 Misc 3d 143[A], 2017 NY Slip Op 50208[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; Palafox PT, P.C. v State Farm Mut. Auto. Ins. Co., 49 Misc 3d 144[A], 2015 NY Slip Op 51653[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Upon a review of the record, we find, contrary to plaintiff’s sole contention on appeal with respect to defendant’s motion, that defendant sufficiently established that the EUO scheduling letters had been timely mailed in accordance with defendant’s standard office practices and procedures (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; JCC Med., P.C. v Lancer Ins. Co., 71 Misc 3d 140[A], 2021 NY Slip Op 50485[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]; Parisien v Ameriprise Ins., 68 Misc 3d 131[A], 2020 NY Slip Op 50990[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]).

Accordingly, the order is affirmed.

ALIOTTA, P.J., TOUSSAINT and GOLIA, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: August 12, 2022