July 1, 2022

Parisien v Travelers Ins. Co. (2022 NY Slip Op 50622(U))

Headnote

The court considered whether a medical provider, Jules Francois Parisien, M.D., as assignee of Nicanor Gonzales, was entitled to recover first-party no-fault benefits from Travelers Insurance Company. The main issue was whether the medical provider failed to appear at duly scheduled examinations under oath (EUOs), and whether the letters sent by the provider demanding an up-front fee and seeking to reschedule the EUOs demonstrated the existence of an issue of fact as to whether the EUOs were scheduled at reasonably convenient times. The court held that the provider's letters demanding a flat up-front fee and seeking to repeatedly reschedule the EUOs to unspecified dates two months later were insufficient to demonstrate the existence of an issue of fact as to whether the EUOs were scheduled at reasonably convenient times, and therefore affirmed the order granting the defendant's motion for summary judgment dismissing the complaint, and denying the plaintiff's cross motion for summary judgment.

Reported in New York Official Reports at Parisien v Travelers Ins. Co. (2022 NY Slip Op 50622(U))

Parisien v Travelers Ins. Co. (2022 NY Slip Op 50622(U)) [*1]

Parisien v Travelers Ins. Co.

2022 NY Slip Op 50622(U) [75 Misc 3d 143(A)]

Decided on July 1, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 July 1, 2022

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

PRESENT: : MICHELLE WESTON, J.P., WAVNY TOUSSAINT, CHEREÉ A. BUGGS, JJ
2021-257 K C

Jules Francois Parisien, M.D., as Assignee of Gonzales, Nicanor, Appellant,
against
Travelers Insurance Company, Respondent.

The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for appellant. Law Office of Tina Newsome-Lee (Dawn Carney of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Richard Tsai, J.), entered April 30, 2021. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgement.

ORDERED that the order is affirmed, with $25 costs.

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

Contrary to plaintiff’s sole contention with respect to defendant’s motion, plaintiff’s letters, which improperly demanded that defendant agree to pay a flat up-front fee of $5,000 as a condition for plaintiff to attend the EUOs scheduled by defendant (see Professional Health Imaging, P.C. v State Farm Mut. Auto. Ins. Co., 51 Misc 3d 143[A], 2016 NY Slip Op 50698[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]) as well as sought to repeatedly reschedule the EUOs to unspecified dates two months later, were insufficient to demonstrate the existence of an issue of fact as to whether the EUOs were scheduled at reasonably convenient [*2]times (see 11 NYCRR 65-3.5 [e]).

Accordingly, the order is affirmed.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: July 1, 2022