September 19, 2016

AVM Chiropractic, P.C. v 21st Century Ins. Co. (2016 NY Slip Op 51354(U))

Headnote

The court considered the defendant's motion for summary judgment dismissing the complaint in a no-fault benefits case, on the grounds that the plaintiff's assignor had failed to appear for scheduled examinations under oath (EUOs). The main issue decided was whether the proof submitted by the defendant was sufficient to give rise to a presumption that the denial of claim forms had been properly mailed, and to demonstrate that the plaintiff's assignor had failed to appear for the EUOs. The court held that the proof submitted by the defendant was indeed sufficient to support these claims, and affirmed the order granting the defendant's motion for summary judgment dismissing the complaint.

Reported in New York Official Reports at AVM Chiropractic, P.C. v 21st Century Ins. Co. (2016 NY Slip Op 51354(U))

AVM Chiropractic, P.C. v 21st Century Ins. Co. (2016 NY Slip Op 51354(U)) [*1]

AVM Chiropractic, P.C. v 21st Century Ins. Co.

2016 NY Slip Op 51354(U) [53 Misc 3d 129(A)]

Decided on September 19, 2016

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This opinion is uncorrected and will not be published in the printed Official Reports.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 19, 2016

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-2513 K C

AVM Chiropractic, P.C., as Assignee of CHRISTINA DAVIS, Appellant,
against
21st Century Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Dawn Jimenez Salta, J.), entered July 15, 2013. 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’s assignor had failed to appear for duly scheduled examinations under oath (EUOs).Contrary to plaintiff’s only arguments on appeal, the proof submitted by defendant in support of its motion was sufficient to give rise to a presumption that the denial of claim forms at issue had been properly mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]), and to demonstrate that plaintiff’s assignor had failed to appear for the EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; Active Chiropractic, P.C. v Praetorian Ins. Co., 43 Misc 3d 134[A], 2014 NY Slip Op 50634[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]).

Accordingly, the order is affirmed.

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Decision Date: September 19, 2016