August 28, 2020

NL Quality Med., P.C. v GEICO Ins. Co. (2020 NY Slip Op 50997(U))

Headnote

The relevant facts in this case involved a provider seeking to recover assigned first-party no-fault benefits from an insurance company. The insurance company moved for summary judgment to dismiss the complaint on the grounds that the provider failed to appear for scheduled examinations under oath (EUOs). The insurance company's affidavit established that the EUO scheduling letters and denial of claim forms had been timely mailed, and their attorney's affirmation demonstrated that the provider failed to appear on the scheduled dates. The main issue decided was whether the insurance company had demonstrated its prima facie entitlement to summary judgment. The court held that the insurance company had met its burden, as the provider failed to raise a triable issue of fact in opposition to the motion. Therefore, the court reversed the order and granted the insurance company's motion for summary judgment dismissing the complaint.

Reported in New York Official Reports at NL Quality Med., P.C. v GEICO Ins. Co. (2020 NY Slip Op 50997(U))

NL Quality Med., P.C. v GEICO Ins. Co. (2020 NY Slip Op 50997(U)) [*1]

NL Quality Med., P.C. v GEICO Ins. Co.

2020 NY Slip Op 50997(U) [68 Misc 3d 131(A)]

Decided on August 28, 2020

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This opinion is uncorrected and will not be published in the printed Official Reports.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 August 28, 2020

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

PRESENT: : THOMAS P. ALIOTTA, P.J., DAVID ELLIOT, WAVNY TOUSSAINT, JJ
2018-2004 K C

NL Quality Medical, P.C., as Assignee of Sumlar, Tanya, Respondent,
against
GEICO Ins. Co., Appellant.

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Michael Gerstein, J.), entered September 5, 2018. The order, insofar as appealed from, denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, 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 moved for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs), and plaintiff cross-moved for summary judgment. Defendant appeals from so much of an order of the Civil Court as denied defendant’s motion.

The affidavit submitted by defendant established that the EUO scheduling letters and the denial of claim forms had been timely mailed in accordance with defendant’s standard office practices and procedures (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). In addition, the affirmation submitted by defendant’s attorney, who was present in her office to conduct the EUO of plaintiff on the scheduled dates, was sufficient to establish that plaintiff had failed to appear on those dates. As a result, defendant demonstrated its prima facie entitlement to summary judgment (see Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2014]; Gentlecare Ambulatory Anesthesia Servs. v GEICO Ins. Co., 63 Misc 3d 152[A], 2019 NY Slip Op 50759[A] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; 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]). Plaintiff failed to raise a triable issue of fact in opposition to defendant’s motion.

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

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: August 28, 2020