June 10, 2022

Prestige Med., P.C. v Metropolitan Prop. & Cas. Ins. Co. (2022 NY Slip Op 50591(U))

Headnote

The relevant facts of the case were that Prestige Medical, P.C. was seeking to recover assigned first-party no-fault benefits from Metropolitan Property and Casualty Insurance Co. The main issue decided by the court was whether the plaintiff failed to appear for duly scheduled examinations under oath (EUOs) and if the EUO scheduling letters had been properly mailed. The holding of the court was that the defendant established that the EUO scheduling letters had been properly mailed, and that the plaintiff had failed to appear for the scheduled EUOs. As a result, the court reversed the order of the Civil Court and granted the defendant's motion for summary judgment, dismissing the complaint.

Reported in New York Official Reports at Prestige Med., P.C. v Metropolitan Prop. & Cas. Ins. Co. (2022 NY Slip Op 50591(U))

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

Prestige Medical, P.C., as Assignee of Gibson, Thomas, Respondent,
against
Metropolitan Property and Casualty Ins. Co., Appellant.

Bruno, Gerbino, Soriano & Aitken, LLP (Susan B. Eisner of counsel), for appellant. Law Offices of Gabriel & Moroff, P.C. (Michael J. Poropat and Koenig Pierre of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Karina E. Alomar, J.), entered July 30, 2020. The order denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order 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 appeals from an order of the Civil Court denying defendant’s motion which had sought summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs).

Defendant established that the EUO scheduling letters had been properly mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Contrary to the finding of the Civil Court, the EUO scheduling letters, which identified the date of the accident and the assignor, were not required to specify bills to which they pertained (see Longevity Med. Supply, Inc. v Nationwide Ins., 69 Misc 3d 128[A], 2020 NY Slip Op 51133[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]; First Class Med., P.C. v Ameriprise Ins. Co.,63 Misc 3d 135[A], 2019 NY Slip Op 50477[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2019]; ARCO Med. NY, P.C. v Lancer Ins. Co., 34 Misc 3d 134[A], 2011 NY Slip Op 52382[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]). Defendant further established that plaintiff had failed to appear for the duly scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]) and that defendant had timely mailed (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123) its denial of claim forms denying the claims on that ground. In opposition, plaintiff failed to raise a triable issue of fact.

Accordingly, the order is reversed and defendant’s motion for summary judgment [*2]dismissing the complaint is granted.

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

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