December 23, 2022

MSB Physical Therapy, P.C. v Nationwide Ins. (2022 NY Slip Op 51378(U))

Headnote

The relevant facts considered in this case were that MSB Physical Therapy, P.C. was seeking to recover assigned first-party no-fault benefits from Nationwide Ins. The main issue decided was whether defendant was entitled to summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for scheduled examinations under oath (EUOs). The holding of the case was that the defendant had failed to establish that it had timely denied plaintiff's claims after plaintiff's failure to appear for an EUO, and therefore defendant's motion for summary judgment dismissing the complaint was properly denied. The court also found that the defendant's papers were insufficient to demonstrate that there is a triable issue of fact as to its EUO no-show defense, and therefore plaintiff's cross motion for summary judgment was affirmed.

Reported in New York Official Reports at MSB Physical Therapy, P.C. v Nationwide Ins. (2022 NY Slip Op 51378(U))

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

MSB Physical Therapy, P.C., as Assignee of Bright, Sayquan U, Respondent,
against
Nationwide Ins., Appellant.

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Richard Tsai, J.), dated July 12, 2021. The order denied defendant’s motion for summary judgment dismissing the complaint and granted 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, 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 had failed to appear for duly scheduled examinations under oath (EUOs), and granting plaintiff’s cross motion for summary judgment.

Defendant’s motion failed to establish that it had timely denied plaintiff’s claims after plaintiff’s second failure to appear for an EUO (see Ezra Supply, Inc. v Nationwide Affinity Ins. Co. of Am., — Misc 3d —, 2022 NY Slip Op 22383 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]; FJL Med. Servs., P.C. v Nationwide Ins., — Misc 3d —, 2022 NY Slip Op 51213[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]; Island Life Chiropractic Pain Care, PLLC v 21st Century Ins. Co., 74 Misc 3d 17 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]; Quality Health Supply Corp. v Nationwide Ins., 69 Misc 3d 133[A], 2020 NY Slip Op 51226[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]). As defendant did not demonstrate that it is not precluded from raising its proffered defense (see Westchester Med. Ctr. [*2]v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2009]), defendant’s motion for summary judgment dismissing the complaint was properly denied.

As to plaintiff’s cross motion, defendant does not challenge plaintiff’s prima facie case and so we do not pass upon the propriety of the Civil Court’s determination with respect thereto. Moreover, defendant’s papers were insufficient to demonstrate that there is a triable issue of fact as to its EUO no-show defense so as to warrant denial of plaintiff’s cross motion.

Accordingly, the order is affirmed.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 23, 2022