December 13, 2019

Aries Chiropractic, P.C. v Ameriprise Ins. Co. (2019 NY Slip Op 52064(U))

Headnote

The court considered the motion for summary judgment by the defendant in an action by a provider to recover assigned first-party no-fault benefits. The main issue decided was whether the defendant's denial of claim form needed to set forth the dates of the scheduled examinations under oath (EUOs) for which the plaintiff had failed to appear. The court held that the defendant's denial of claim form did not need to specify the dates of the EUOs for which the plaintiff had failed to appear, as it was not required by the Department of Financial Services. Therefore, the order granting the defendant's motion for summary judgment dismissing the complaint was affirmed.

Reported in New York Official Reports at Aries Chiropractic, P.C. v Ameriprise Ins. Co. (2019 NY Slip Op 52064(U))

Aries Chiropractic, P.C. v Ameriprise Ins. Co. (2019 NY Slip Op 52064(U)) [*1]

Aries Chiropractic, P.C. v Ameriprise Ins. Co.

2019 NY Slip Op 52064(U) [66 Misc 3d 130(A)]

Decided on December 13, 2019

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This opinion is uncorrected and will not be published in the printed Official Reports.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 13, 2019

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

PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, BERNICE D. SIEGAL, JJ
2018-1596 K C

Aries Chiropractic, P.C., as Assignee of Max Guzhva, Appellant,
against
Ameriprise Ins. Co., Respondent.

Kopelevich & Feldsherova, P.C. (David Landfair of counsel), for appellant. Bruno, Gerbino & Soriano, LLP (Nathan M. Shapiro of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Harriet L. Thompson), entered July 5, 2018. 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 on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs).

Contrary to plaintiff’s contention, defendant’s denial of claim form did not need to set forth the dates of the EUOs for which plaintiff had failed to appear. “Had it been the intent of the Department of [Financial Services] to require the carrier to set forth [the dates of the scheduled EUOs] in the prescribed denial of claim form (see NYS Form N-F 10; 11 NYCRR 65-3.4 [c] [11]), it would have so provided” (A.B. Med. Servs., PLLC v Liberty Mut. Ins. Co., 39 AD3d 779, 780 [2007]; A.B. Med. Servs., PLLC v GEICO Cas. Ins. Co., 39 AD3d 778, 779 [2007]; cf. Unitrin Advantage Ins. Co. v All of NY, Inc., 158 AD3d 449 [1st Dept 2018]).

Accordingly, the order is affirmed.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 13, 2019