December 6, 2019

Restoration Chiropractic, P.C. v 21st Century Ins. Co. (2019 NY Slip Op 51961(U))

Headnote

The main issue in Restoration Chiropractic, P.C. v 21st Century Ins. Co. was whether the defendant's motion for summary judgment dismissing the complaint should be granted. The court considered the fact that the plaintiff's assignor had failed to appear for scheduled examinations under oath (EUOs), and the defendant argued that this failure was grounds for dismissal of the complaint. However, the court held that the defendant's follow-up scheduling letter for the EUOs was untimely, as it was mailed more than 10 days after the assignor's failure to appear for the first scheduled EUO. As a result, the court reversed the order and denied the defendant's motion for summary judgment dismissing the complaint.

Reported in New York Official Reports at Restoration Chiropractic, P.C. v 21st Century Ins. Co. (2019 NY Slip Op 51961(U))

Restoration Chiropractic, P.C. v 21st Century Ins. Co. (2019 NY Slip Op 51961(U)) [*1]

Restoration Chiropractic, P.C. v 21st Century Ins. Co.

2019 NY Slip Op 51961(U) [65 Misc 3d 157(A)]

Decided on December 6, 2019

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This opinion is uncorrected and will not be published in the printed Official Reports.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 6, 2019

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

PRESENT: : MICHAEL L. PESCE, P.J., MICHELLE WESTON, THOMAS P. ALIOTTA, JJ
2016-603 K C

Restoration Chiropractic, P.C., as Assignee of Lopez, Candice, Appellant,
against
21st Century Insurance Company, Respondent.

The Rybak Firm, PLLC (Damin J. Toell and Karina Barska of counsel), for appellant. Law Offices of Bryan M. Rothenberg (Sharon A. Brennan and Maryana Feigen of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Harriet L. Thompson, J.), entered February 23, 2016. The order granted 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 denied.

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

The record establishes that defendant’s follow-up scheduling letter was mailed more than 10 days after plaintiff’s assignor had failed to appear for the first scheduled EUO. As a result, this follow-up scheduling letter was untimely (see 11 NYCRR 65-3.5 [b]). Consequently, defendant’s motion should have been denied (see Parisien v 21st Century Ins. Co., 62 Misc 3d 150[A], 2019 NY Slip Op 50275[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]).

Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is denied.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 6, 2019