June 17, 2022

Hand By Hand PT, P.C. v Nationwide Prop. & Cas. Ins. Co. (2022 NY Slip Op 50607(U))

Headnote

The relevant facts considered by the court were that the plaintiff, Hand By Hand PT, P.C., was seeking to recover assigned first-party no-fault benefits from the defendant, Nationwide Property and Casualty Insurance Company. The defendant had scheduled examinations under oath (EUOs) for the plaintiff, but the plaintiff failed to appear on either date. The defendant then timely denied the claims on the ground of plaintiff's failure to appear for the EUOs. The main issue decided was whether the defendant's motion for summary judgment dismissing the complaint should have been granted, and whether the plaintiff's opposition papers were sufficient to rebut the defendant's prima facie showing. The holding of the court was that the order of the Civil Court denying the defendant's motion for summary judgment was reversed, and the defendant's motion for summary judgment dismissing the complaint was granted. The court determined that the proof submitted by the defendant demonstrated that the plaintiff had failed to appear for the scheduled EUOs, and that the claims were timely denied on that ground. Therefore, the defendant was entitled to summary judgment dismissing the complaint.

Reported in New York Official Reports at Hand By Hand PT, P.C. v Nationwide Prop. & Cas. Ins. Co. (2022 NY Slip Op 50607(U))

Hand By Hand PT, P.C. v Nationwide Prop. & Cas. Ins. Co. (2022 NY Slip Op 50607(U)) [*1]

Hand By Hand PT, P.C. v Nationwide Prop. & Cas. Ins. Co.

2022 NY Slip Op 50607(U) [75 Misc 3d 141(A)]

Decided on June 17, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 June 17, 2022

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

PRESENT: : THOMAS P. ALIOTTA, P.J., DONNA-MARIE E. GOLIA, CHEREÉ A. BUGGS, JJ
2020-744 K C

Hand By Hand PT, P.C., as Assignee of Luis Martinez, Respondent,
against
Nationwide Property and Casualty Insurance Company, Appellant.

Hollander Legal Group, P.C. (Allan S. Hollander and Christopher Volpe of counsel), for appellant. Kopelevich & Feldsherova, P.C. (David Landfair of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Jill R. Epstein, J.), dated December 4, 2019. The order denied defendant’s motion for summary judgment dismissing the complaint and, upon a search of the record, granted summary judgment to plaintiff.

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

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court denying defendant’s motion which had sought summary judgment dismissing the complaint on the ground that plaintiff failed to appear for duly scheduled examinations under oath (EUOs) and, upon a search of the record, granted summary judgment to plaintiff.

A review of the record indicates that the proof submitted by defendant in support of its motion for summary judgment dismissing the complaint demonstrated that defendant’s initial and follow-up letters scheduling the EUOs had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]), that plaintiff failed to appear on either date (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; TAM Med. Supply Corp. v 21st Century Ins. Co., 57 Misc 3d 149[A], 2017 NY Slip Op 51510[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]), and that the claims were timely denied on that ground (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123). As plaintiff’s opposition papers failed to rebut defendant’s prima facie showing, defendant’s motion for summary judgment dismissing the complaint should have been granted.

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

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: June 17, 2022