June 10, 2022

PFJ Med. Care, P.C. v Nationwide Ins. (2022 NY Slip Op 50570(U))

Headnote

The court considered the denial of the plaintiff's motion for summary judgment and the granting of the defendant's cross motion for summary judgment dismissing the complaint. The main issue decided was whether the defendant's affirmations and transcripts of the examinations under oath were sufficient to establish that the plaintiff had failed to appear for the examinations. The holding of the case was that the affirmations submitted by the defendant's counsel and the transcripts of the examinations under oath were indeed sufficient to establish that the plaintiff had failed to appear for the examinations, and therefore, the order denying the motion for summary judgment and granting the defendant's cross motion for summary judgment dismissing the complaint was affirmed by the court.

Reported in New York Official Reports at PFJ Med. Care, P.C. v Nationwide Ins. (2022 NY Slip Op 50570(U))

PFJ Med. Care, P.C. v Nationwide Ins. (2022 NY Slip Op 50570(U)) [*1]

PFJ Med. Care, P.C. v Nationwide Ins.

2022 NY Slip Op 50570(U) [75 Misc 3d 137(A)]

Decided on June 10, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 June 10, 2022

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

PRESENT: : THOMAS P. ALIOTTA, P.J., WAVNY TOUSSAINT, DONNA-MARIE E. GOLIA, JJ
2020-74 K C

PFJ Medical Care, P.C., as Assignee of Simmond, Tylon B., Appellant,
against
Nationwide Ins., Respondent.

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered September 26, 2019. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

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 denying plaintiff’s motion for summary judgment and granting defendant’s cross motion for summary judgment dismissing the complaint.

Contrary to plaintiff’s sole contention on appeal with respect to defendant’s cross motion for summary judgment dismissing the complaint, the affirmations submitted by defendant’s counsel, as well as the transcripts of the examinations under oath (EUOs), were sufficient to establish that plaintiff had failed to appear for the EUOs (see Pavlova v Nationwide Ins., 70 Misc 3d 144[A], 2021 NY Slip Op 50213[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]).

Accordingly, the order is affirmed.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: June 10, 2022