NL Quality Med., P.C. v GEICO Ins. Co. (2020 NY Slip Op 51340(U))

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Rivkin Radler, LLP (Stuart M. Bodoff and Cheryl F. Korman 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 granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

ORDERED that the order is modified by providing that the branch of defendant’s motion seeking summary judgment dismissing the second cause of action is denied; as so modified, the order is affirmed, without 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 and denied plaintiff’s cross motion for summary judgment.

Contrary to plaintiff’s contentions, with respect to the branch of defendant’s motion seeking summary judgment dismissing the third through fifth causes of action, the proof submitted by defendant in support of its motion was sufficient to give rise to a presumption that the examination under oath (EUO) scheduling letters and the denial of claim forms 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]; Gentlecare Ambulatory Anesthesia Servs. v GEICO Ins. Co., 59 Misc 3d 152[A], 2018 NY Slip Op 50864[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]). Thus, defendant demonstrated, prima facie, that plaintiff had failed to comply with a condition precedent to coverage with respect to the third though fifth causes of action (see Stephen Fogel Psychological, P.C., 35 AD3d at 722). In addition, defendant demonstrated its prima facie entitlement to [*2]judgment dismissing the first cause of action on the ground that the automobile insurance policy in question had a $200 personal injury protection deductible. As plaintiff failed to raise a triable issue of fact in opposition to these branches of defendant’s motion, we find no basis to disturb the Civil Court’s determination that defendant was entitled to summary judgment upon the first and third through fifth causes of action.

With respect to the second cause of action, defendant failed to establish, as a matter of law, its defense that the fees charged exceeded the amounts set forth in the workers’ compensation fee schedule (see Rogy Med., P.C. v Mercury Cas. Co., 23 Misc 3d 132[A], 2009 NY Slip Op 50732[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]), because, among other things, defendant attempted to rely on certain documents which were attached to defendant’s motion papers without authentication, foundation or even discussion (see Liberty Chiropractic, P.C. v 21st Century Ins. Co., 53 Misc 3d 133[A], 2016 NY Slip Op 51409[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]). However, contrary to plaintiff’s contention, an issue of fact exists as to whether plaintiff is entitled to recover any additional reimbursement with respect to these services; therefore, the branch of plaintiff’s cross motion seeking summary judgment upon the second cause of action was properly denied.

Accordingly, the order is modified by providing that the branch of defendant’s motion seeking summary judgment dismissing the second cause of action is denied.

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