December 19, 2014

Optimal Well-Being Chiropractic, P.c. v Ameriprise Auto & Home Ins. (2014 NY Slip Op 51858(U))

Headnote

The relevant facts considered by the court in this case involved a dispute between Optimal Well-Being Chiropractic, P.C. and Ameriprise Auto & Home Insurance. The issue decided was whether the insurance company had properly denied the claims for first-party no-fault benefits due to the failure of the plaintiff to appear for scheduled EUOs. The court ultimately held in favor of Optimal Well-Being Chiropractic, P.C., ruling that the insurance company had failed to submit proof by someone with personal knowledge of the nonappearance of the plaintiff at the EUOs in question, and therefore affirming the judgment in favor of the plaintiff.

Reported in New York Official Reports at Optimal Well-Being Chiropractic, P.c. v Ameriprise Auto & Home Ins. (2014 NY Slip Op 51858(U))

Optimal Well-Being Chiropractic, P.c. v Ameriprise Auto & Home Ins. (2014 NY Slip Op 51858(U)) [*1]

Optimal Well-Being Chiropractic, P.c. v Ameriprise Auto & Home Ins.

2014 NY Slip Op 51858(U) [46 Misc 3d 133(A)]

Decided on December 19, 2014

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This opinion is uncorrected and will not be published in the printed Official Reports.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 December 19, 2014

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2012-1062 Q C

Optimal Well-Being Chiropractic, P.C. as Assignee of BERTHA RAMOS, Respondent,
against
Ameriprise Auto & Home Insurance, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Barry A. Schwartz, J.), entered February 7, 2012, deemed from a judgment of the same court entered April 4, 2012 (see CPLR 5501 [c]). The judgment, entered pursuant to the February 7, 2012 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment dismissing the complaint, awarded plaintiff the principal sum of $1,019.62.

ORDERED that the judgment 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 which granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

Inasmuch as defendant raises no issue on appeal with respect to plaintiff’s prima facie case, we do not pass upon the propriety of the Civil Court’s determination with respect thereto.

Defendant opposed plaintiff’s motion and sought summary judgment dismissing the complaint on the ground that defendant had timely and properly denied the claims at issue based on plaintiff’s failure to appear for duly scheduled examinations under oath (EUOs). However, [*2]defendant failed to submit proof by someone with personal knowledge of the nonappearance of plaintiff at the EUOs in question (see Alrof, Inc. v Safeco Natl. Ins. Co., 39 Misc 3d 130[A], 2013 NY Slip Op 50458[U] [App Term, 2d, 11th & 13th Jud Dists 2013]; see also Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; SP Chiropractic, P.C. v IDS Prop. & Cas. Ins. Co., 44 Misc 3d 126[A], 2014 NY Slip Op 50952[U] [App Term, 2d, 11th & 13th Jud Dists 2014]; Bright Med. Supply Co. v IDS Prop. & Cas. Ins. Co., 40 Misc 3d 130[A], 2013 NY Slip Op 51123[U] [App Term, 2d, 11th & 13th Jud Dists 2013]).Accordingly, the judgment is affirmed.

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

Decision Date: December 19, 2014