November 1, 2019

Easy Care Acupuncture, P.C. v Ameriprise Ins. Co. (2019 NY Slip Op 51794(U))

Headnote

The relevant facts that the court considered were that the plaintiff, Easy Care Acupuncture, P.C., was seeking to recover first-party no-fault benefits from the defendant, Ameriprise Ins. Co. The defendant had moved for summary judgment to dismiss part of the complaint, claiming that the plaintiff's assignor had failed to appear for scheduled examinations under oath (EUOs). The court decided that the defendant had established that the EUO scheduling letters had been timely mailed and that the plaintiff had indeed failed to appear for the scheduled EUOs. As a result, the court affirmed the order, granting the defendant's motion for summary judgment and dismissing the claims for certain amounts in the complaint. The main issue decided by the court was whether the defendant had proven that the plaintiff's assignor had failed to appear for scheduled examinations under oath, and if so, whether the plaintiff's claims for certain amounts should be dismissed. The holding of the case was that the court affirmed the order granting the defendant's motion for summary judgment, dismissing the claims in the complaint for specific amounts, as the plaintiff had failed to appear for the scheduled examinations under oath.

Reported in New York Official Reports at Easy Care Acupuncture, P.C. v Ameriprise Ins. Co. (2019 NY Slip Op 51794(U))

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

Easy Care Acupuncture, P.C., as Assignee of Jackie Maulange, Appellant,
against
Ameriprise Ins. Co., Respondent.

Gary Tsirelman, P.C. (Douglas Mace 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 (Richard J. Montelione, J.), entered November 2, 2017. The order, insofar as appealed from, granted the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover on claims for $2,079.15, $1,035.12, $980.12, $862.60, $542.56, and $255.04.

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, plaintiff appeals from so much of an order of the Civil Court as granted the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover on claims for $2,079.15, $1,035.12, $980.12, $862.60, $542.56, and $255.04 on the ground that plaintiff’s assignor had failed to appear for duly scheduled examinations under oath (EUOs).

Contrary to plaintiff’s contentions on appeal, defendant established that the EUO scheduling letters had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; see also ARCO Med. NY, P.C. v Lancer Ins. Co., 34 Misc 3d 134[A], 2011 NY Slip Op 52382[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists [*2]2011]) and that plaintiff had failed to appear for the duly scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).

Plaintiff’s remaining contentions lack merit.

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

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 01, 2019