March 11, 2016

Great Health Care Chiropractic, P.C. v Allstate Ins. Co. (2016 NY Slip Op 50311(U))

Headnote

The court considered the facts of an action by a provider to recover assigned first-party no-fault benefits. The defendant had moved for summary judgment dismissing the complaint, alleging that the claims at issue had been timely and properly denied on the ground that the plaintiff's assignor had failed to appear at duly scheduled examinations under oath (EUOs). The main issue decided was whether the defendant had properly scheduled the EUOs, and thus, whether the plaintiff's assignor had failed to appear at the examinations. The holding was that the defendant failed to establish that the initial and follow-up EUO scheduling letters had been timely mailed and failed to demonstrate that the EUOs had been properly scheduled, therefore the defendant was not entitled to summary judgment dismissing the complaint. As a result, the order was reversed, and the defendant's motion for summary judgment dismissing the complaint was denied.

Reported in New York Official Reports at Great Health Care Chiropractic, P.C. v Allstate Ins. Co. (2016 NY Slip Op 50311(U))

Great Health Care Chiropractic, P.C. v Allstate Ins. Co. (2016 NY Slip Op 50311(U)) [*1]

Great Health Care Chiropractic, P.C. v Allstate Ins. Co.

2016 NY Slip Op 50311(U) [50 Misc 3d 146(A)]

Decided on March 11, 2016

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This opinion is uncorrected and will not be published in the printed Official Reports.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 March 11, 2016

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

PRESENT: : PESCE, P.J., ALIOTTA and ELLIOT, JJ.
2013-1439 K C

Great Health Care Chiropractic, P.C. as Assignee of Remech Hall, Appellant,
against
Allstate Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered May 2, 2013. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint, alleging that the claims at issue had been timely and properly denied on the ground that plaintiff’s assignor had failed to appear at duly scheduled examinations under oath (EUOs). Plaintiff opposed the motion. By order entered May 2, 2013, the Civil Court granted defendant’s motion.

In support of its motion, defendant failed to establish that the initial and follow-up EUO scheduling letters had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). As a result, defendant failed to demonstrate that the EUOs had been properly scheduled and, thus, that plaintiff’s assignor had failed to appear at duly scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 722 [2006]). Consequently, defendant is not entitled to summary judgment dismissing the complaint.

Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is denied.

Pesce, P.J., Aliotta and Elliot, JJ., concur.

Decision Date: March 11, 2016