July 15, 2022

Chi P&L Acupuncture, P.C. v GEICO Gen. Ins. Co. (2022 NY Slip Op 50768(U))

Headnote

The court considered an appeal from an order of the Civil Court denying the defendant's motion for summary judgment to dismiss the complaint by a provider seeking first-party no-fault benefits. The issue was whether the defendant's motion had established that the plaintiff had failed to appear for scheduled examinations under oath (EUOs) and whether the defendant had timely denied the plaintiff's claims after the plaintiff's failure to appear for the EUOs. The holding was that the defendant's motion failed to demonstrate that it was not precluded from raising its defense, and thus the motion for summary judgment dismissing the complaint was properly denied. The order was affirmed, and the decision was made on July 15, 2022.

Reported in New York Official Reports at Chi P&L Acupuncture, P.C. v GEICO Gen. Ins. Co. (2022 NY Slip Op 50768(U))

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

Chi P&L Acupuncture, P.C., as Assignee of Oscar Fleming, Kedar Nashoba El, Sergio Mencia, Gabriel Santana, Carlos Viejo and Victor Pelaez, Jr., Respondent,
against
GEICO General Ins. Co., Appellant.

Rivkin Radler, LLP (Stuart M. Bodoff of counsel), for appellant. Zara Javakov, P.C. (Zara Javakov of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Lorna J. McAllister, J.), entered January 23, 2019. The order, insofar as appealed from as limited by the brief, denied defendant’s motion for summary judgment dismissing the complaint.

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, defendant appeals, as limited by its brief, from so much of an order of the Civil Court as denied defendant’s motion which had sought summary judgment dismissing the complaint on the ground that plaintiff failed to appear for duly scheduled examinations under oath (EUOs).

Contrary to defendant’s contention, defendant’s motion failed to establish that defendant had timely denied plaintiff’s claims after plaintiff failed to appear at both an initial and a follow-up EUO (see Island Life Chiropractic Pain Care, PLLC v 21st Century Ins. Co., 74 Misc 3d 17 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]; Quality Health Supply Corp. v Nationwide Ins., 69 Misc 3d 133[A], 2020 NY Slip Op 51226[U] [App Term, 2d Dept, 2d, 11th [*2]& 13th Jud Dists 2020]). As defendant did not demonstrate that it is not precluded from raising its proffered defense (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2009]), defendant’s motion for summary judgment dismissing the complaint was properly denied (see Quality Health Supply Corp. v Nationwide Ins., 2020 NY Slip Op 51226[U]). We reach no other issue.

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

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: July 15, 2022