July 12, 2019

Gentlecare Ambulatory Anesthesia Servs. v GEICO Ins. Co. (2019 NY Slip Op 51161(U))

Headnote

The court considered the defendant's motion for summary judgment dismissing the complaint on the grounds that the plaintiff had failed to appear for scheduled examinations under oath (EUOs). The relevant facts included the proof submitted by the defendant, which gave rise to the presumption that the denial of claim form had been timely mailed and demonstrated that the plaintiff had failed to appear for the EUOs. The main issue decided was whether the defendant's proof was sufficient to establish its entitlement to summary judgment. The holding of the court was that the defendant had met the legal requirements to establish prima facie entitlement to summary judgment, and the plaintiff had not provided any basis to disturb the Civil Court's order. Therefore, the court affirmed the order granting the defendant's motion for summary judgment.

Reported in New York Official Reports at Gentlecare Ambulatory Anesthesia Servs. v GEICO Ins. Co. (2019 NY Slip Op 51161(U))

Gentlecare Ambulatory Anesthesia Servs. v GEICO Ins. Co. (2019 NY Slip Op 51161(U)) [*1]

Gentlecare Ambulatory Anesthesia Servs. v GEICO Ins. Co.

2019 NY Slip Op 51161(U) [64 Misc 3d 137(A)]

Decided on July 12, 2019

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This opinion is uncorrected and will not be published in the printed Official Reports.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 July 12, 2019

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

PRESENT: : MICHAEL L. PESCE, P.J., MICHELLE WESTON, THOMAS P. ALIOTTA, JJ
2017-941 K C

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

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Rivkin Radler, LLP (Stuart M. Bodoff 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 February 16, 2017. 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 had failed to appear for duly scheduled examinations under oath (EUOs).

Contrary to plaintiff’s contentions, the proof submitted by defendant in support of its motion was sufficient to give rise to a presumption that the denial of claim form had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) and to demonstrate that plaintiff had failed to appear for the EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Furthermore, defendant was not required to set forth objective reasons for requesting EUOs in order to establish its prima facie entitlement to summary judgment, as an insurer need only demonstrate “as a matter of law that it twice duly demanded an [EUO] from the [provider] . . . that the [provider] twice failed to appear, and that the [insurer] issued a timely denial of the claim[]” (Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2014]; see Parisien v Metlife Auto & Home, 54 Misc 3d 143[A], 2017 NY Slip Op 50208[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; 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]). Consequently, plaintiff has not provided any basis to [*2]disturb the Civil Court’s order.

Accordingly, the order is affirmed.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: July 12, 2019