June 1, 2018

Gentlecare Ambulatory Anesthesia Servs. v GEICO Ins. Co. (2018 NY Slip Op 50837(U))

Headnote

The case involved a dispute over first-party no-fault benefits. The plaintiff, a medical provider, appealed from an order of the Civil Court which denied their motion for summary judgment and granted the defendant's cross motion for summary judgment. The basis for the denial of plaintiff's motion and the granting of the defendant's cross motion was that the plaintiff had failed to appear for scheduled examinations under oath (EUOs). The defendant was able to establish that the EUO scheduling letters and denial of claim form had been properly mailed, and that the plaintiff had failed to appear for the scheduled EUOs. The court found that the defendant's proof was sufficient to give rise to a presumption of proper mailing, and therefore affirmed the order, denying the plaintiff's motion and granting the defendant's cross motion.

Reported in New York Official Reports at Gentlecare Ambulatory Anesthesia Servs. v GEICO Ins. Co. (2018 NY Slip Op 50837(U))

Gentlecare Ambulatory Anesthesia Servs. v GEICO Ins. Co. (2018 NY Slip Op 50837(U)) [*1]

Gentlecare Ambulatory Anesthesia Servs. v GEICO Ins. Co.

2018 NY Slip Op 50837(U) [59 Misc 3d 150(A)]

Decided on June 1, 2018

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This opinion is uncorrected and will not be published in the printed Official Reports.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 June 1, 2018

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

PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2015-2804 Q C

Gentlecare Ambulatory Anesthesia Services; Lyonel F. Paul, M.D., as Assignee of Russell, Dalton, Appellant,
against
GEICO Ins. Co., Respondent.

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Rivkin Radler, LLP (Cheryl F. Korman, Henry Mascia and Stuart M. Bodoff of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Terrence C. O’Connor, J.), entered October 20, 2015. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross 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 denied plaintiff’s motion for summary judgment, and granted defendant’s cross 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 proof was sufficient to give rise to a presumption that the EUO scheduling letters and denial of claim form had been properly mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Contrary to plaintiff’s further contention, defendant also established plaintiff’s failure to appear for the scheduled EUOs (see e.g. Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; T & J Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co., 47 Misc 3d 130[A], 2015 NY Slip Op 50406[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). [*2]Plaintiff’s remaining contentions lack merit (see Interboro Ins. Co. v Clennon, 113 AD3d 596 [2014]; Palafox PT, P.C. v State Farm Mut. Auto. Ins. Co., 49 Misc 3d 144[A], 2015 NY Slip Op 51653[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; T & J Chiropractic, P.C., 47 Misc 3d 130[A], 2015 NY Slip Op 50406[U]).

Accordingly, the order is affirmed.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: June 01, 2018