December 2, 2022

First Spine Chiropractic of NY, P.C. v Nationwide Affinity Ins. Co. of Am. (2022 NY Slip Op 51252(U))

Headnote

The court considered the fact that the plaintiff, First Spine Chiropractic of NY, P.C., was seeking to recover assigned first-party no-fault benefits from the defendant, Nationwide Affinity Insurance Company of America. The defendant had filed a motion for summary judgment dismissing the complaint on the grounds that the plaintiff's assignor had failed to appear for scheduled examinations under oath, and the plaintiff's cross motion for summary judgment was denied. The main issue decided was whether the defendant's motion for summary judgment should be granted, and the court held that the affidavits of the defendant's claim specialist and mailing manager were sufficient to establish, prima facie, that the defendant had timely denied the plaintiff's claims. In addition, the court found that the plaintiff had failed to raise a triable issue of fact in opposition to the defendant's motion. Therefore, the court affirmed the order of the Civil Court.

Reported in New York Official Reports at First Spine Chiropractic of NY, P.C. v Nationwide Affinity Ins. Co. of Am. (2022 NY Slip Op 51252(U))

First Spine Chiropractic of NY, P.C. v Nationwide Affinity Ins. Co. of Am. (2022 NY Slip Op 51252(U)) [*1]

First Spine Chiropractic of NY, P.C. v Nationwide Affinity Ins. Co. of Am.

2022 NY Slip Op 51252(U) [77 Misc 3d 133(A)]

Decided on December 2, 2022

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This opinion is uncorrected and will not be published in the printed Official Reports.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 2, 2022

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

PRESENT: : THOMAS P. ALIOTTA, P.J., WAVNY TOUSSAINT, CHEREÉ A. BUGGS, JJ
2021-790 K C

First Spine Chiropractic of NY, P.C., as Assignee of Fabian, Angel, Appellant,
against
Nationwide Affinity Insurance Company of America, Respondent.

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Consuelo Mallafre Melendez, J.), entered December 30, 2020. 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, and denied plaintiff’s cross motion for summary judgment.

Contrary to plaintiff’s sole appellate contention with respect to defendant’s motion for summary judgment dismissing the complaint, the affidavits of defendant’s claim specialist and mailing manager were sufficient to establish, prima facie, that defendant had timely denied plaintiff’s claims (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] [*2][App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]). In opposition, plaintiff failed to raise a triable issue of fact.

Accordingly, the order is affirmed.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 2, 2022