May 29, 2014

SP Chiropractic, P.C. v IDS Prop. & Cas. Ins. Co. (2014 NY Slip Op 50952(U))

Headnote

The court considered the motion for summary judgment by the defendant to dismiss the complaint brought by a provider seeking first-party no-fault benefits. The defendant argued that the claims at issue were properly denied based on the plaintiff's failure to appear for scheduled examinations under oath (EUOs). The main issue decided was whether the defendant's motion for summary judgment should be granted. The court held that the defendant's motion was properly denied because they failed to submit proof by someone with personal knowledge of the plaintiff's nonappearance for the EUOs in question. Therefore, the order denying defendant's motion was affirmed.

Reported in New York Official Reports at SP Chiropractic, P.C. v IDS Prop. & Cas. Ins. Co. (2014 NY Slip Op 50952(U))

SP Chiropractic, P.C. v IDS Prop. & Cas. Ins. Co. (2014 NY Slip Op 50952(U)) [*1]

SP Chiropractic, P.C. v IDS Prop. & Cas. Ins. Co.

2014 NY Slip Op 50952(U) [44 Misc 3d 126(A)]

Decided on May 29, 2014

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This opinion is uncorrected and will not be published in the printed Official Reports.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 May 29, 2014

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2012-575 K C

SP Chiropractic, P.C. as Assignee of RANSES RUFINO, Respondent, May 29, 2014
against
IDS Property & Casualty Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Nancy M. Bannon, J.), entered November 15, 2011. The order denied defendant’s 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, defendant moved for summary judgment dismissing the complaint on the ground that defendant had timely and properly denied the claims at issue based on plaintiff’s failure to appear for duly scheduled examinations under oath (EUOs). The Civil Court denied defendant’s motion.

Because defendant failed to submit proof by someone with personal knowledge of the nonappearance of plaintiff for the EUOs in question, defendant’s motion was properly denied (see Alrof, Inc. v Safeco Natl. Ins. Co., 39 Misc 3d 130[A], 2013 NY Slip Op 50458[U] [App Term, 2d, 11th & 13th Jud Dists 2013]; Bright Med. Supply Co. v IDS Prop. & Cas. Ins. Co., 40 Misc 3d 130[A], 2013 NY Slip Op 51123[U] [App Term, 2d, 11th & 13th Jud Dists 2013]).

Accordingly, the order is affirmed.

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Decision Date: May 29, 2014