August 12, 2022

RA Med. Servs., P.C. v Lancer Ins. Co. (2022 NY Slip Op 50793(U))

Headnote

The court considered a case in which a medical services provider, RA Medical Services, P.C., sought to recover first-party no-fault benefits from Lancer Insurance Co. The main issue in the case was whether Lancer Insurance Co. was entitled to summary judgment dismissing the complaint on the grounds that RA Medical Services had failed to appear for duly scheduled examinations under oath (EUOs). The court held that Lancer Insurance Co. failed to demonstrate that it was entitled to summary judgment dismissing the complaint based on RA Medical Services' failure to appear for EUOs. The court pointed out that the initial EUO request to RA Medical Services had been sent more than 30 days after Lancer Insurance Co. had received the claims at issue, making the requests nullities as to those claims. Therefore, the court affirmed the denial of Lancer Insurance Co.'s motion for summary judgment and granted RA Medical Services' cross motion for summary judgment.

Reported in New York Official Reports at RA Med. Servs., P.C. v Lancer Ins. Co. (2022 NY Slip Op 50793(U))

RA Med. Servs., P.C. v Lancer Ins. Co. (2022 NY Slip Op 50793(U)) [*1]

RA Med. Servs., P.C. v Lancer Ins. Co.

2022 NY Slip Op 50793(U) [76 Misc 3d 129(A)]

Decided on August 12, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 August 12, 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
2019-1404 K C

RA Medical Services, P.C., as Assignee of Saint-Flavin, Farra M., Respondent,
against
Lancer Insurance Co., Appellant.

Hollander Legal Group, P.C. (Allan S. Hollander of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell 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 August 8, 2019. The order denied defendant’s motion for summary judgment dismissing the complaint and granted plaintiff’s cross motion for summary judgment.

ORDERED that the order 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 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) and granting plaintiff’s cross motion for summary judgment.

Contrary to defendant’s contention, defendant failed to demonstrate that it was entitled to summary judgment dismissing the complaint based on plaintiff’s failure to appear for EUOs, since the initial EUO request to plaintiff had been sent more than 30 days after defendant had received the claims at issue and, therefore, the requests were nullities as to those claims (see Neptune Med. Care, P.C. v Ameriprise Auto & Home Ins., 48 Misc 3d 139[A], 2015 NY Slip [*2]Op 51220[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; O & M Med., P.C. v Travelers Indem. Co., 47 Misc 3d 134[A], 2015 NY Slip Op 50476[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Furthermore, as defendant raises no issue with respect to plaintiff’s establishment of its prima facie entitlement to summary judgment, we do not pass upon the propriety of the Civil Court’s determination with respect thereto.

Accordingly, the order is affirmed.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: August 12, 2022