May 16, 2025

MSB Physical Therapy, P.C. v Nationwide Ins. (2025 NY Slip Op 50831(U))

Headnote

The court considered the fact that MSB Physical Therapy, P.C., as the assignee of a patient, failed to attend scheduled examinations under oath (EUOs) required for the processing of no-fault insurance claims. The defendant, Nationwide Insurance, established that it had properly mailed the scheduling letters for the EUOs and demonstrated that plaintiff's non-appearance justified the denial of claims. The main issues decided included whether the plaintiff's non-compliance with the EUO requirements warranted the dismissal of the complaint and the denial of plaintiff's cross-motion for summary judgment. The court held that since the plaintiff did not raise a triable issue of fact against the defendant’s prima facie showing, the motion for summary judgment by Nationwide Insurance was rightly granted, and the plaintiff's cross-motion was denied.

Reported in New York Official Reports at MSB Physical Therapy, P.C. v Nationwide Ins. (2025 NY Slip Op 50831(U))

[*1]

MSB Physical Therapy, P.C. v Nationwide Ins.

2025 NY Slip Op 50831(U) [86 Misc 3d 127(A)]

Decided on May 16, 2025

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This opinion is uncorrected and will not be published in the printed Official Reports.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 16, 2025

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

PRESENT: : WAVNY TOUSSAINT, P.J., CHEREE A. BUGGS, LISA S. OTTLEY, JJ
2021-623 K C

MSB Physical Therapy, P.C., as Assignee of Shuler, Azyzah, Appellant,

against

Nationwide Ins., Respondent.

The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik 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 (Odessa Kennedy, J.), entered July 29, 2021. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross-motion for summary judgment. Justices Buggs and Ottley have been substituted for former Justices Aliotta and Weston.

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 of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint on the ground that plaintiff failed to appear for duly scheduled examinations under oath (EUOs), and denied plaintiff’s cross-motion for summary judgment.

Defendant established prima facie that it timely mailed initial and follow-up EUO scheduling letters (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; see also 11 NYCRR 65-3.8 [l]); that plaintiff failed to appear for the scheduled EUOs; and that defendant then issued “timely and proper denial[s] of the claims following [plaintiff’s] failure to appear at the last scheduled EUO” (Quality Health Supply Corp. v Nationwide Ins., 216 AD3d 1013, 1014 [2023], revg 69 Misc 3d 133[A], 2020 NY Slip Op 51226[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]). As plaintiff failed to raise a triable issue of fact in response to defendant’s prima facie showing, defendant’s motion was properly granted and plaintiff’s cross-motion was properly denied.

Accordingly, the order is affirmed.

The decision and order of this court dated December 23, 2022 (77 Misc 3d 140[A], 2022 NY Slip Op 51382[U]) is hereby recalled and vacated (see motion decided simultaneously herewith).

TOUSSAINT, P.J., BUGGS and OTTLEY, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: May 16, 2025