Reported in New York Official Reports at Laga v American Commerce Ins. Co. (2017 NY Slip Op 51254(U))
| Laga v American Commerce Ins. Co. |
| 2017 NY Slip Op 51254(U) [57 Misc 3d 134(A)] |
| Decided on September 22, 2017 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 September 22, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2014-2015 Q C
against
American Commerce Insurance Company, Respondent.
The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Bruno, Gerbino & Soriano, LLP (Mitchell L. Kaufman, Esq.), for respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered July 30, 2014. The order, insofar as appealed from, denied the branches of plaintiff’s motion seeking summary judgment on the second through fourth causes of action and granted the branches of defendant’s cross motion seeking summary judgment dismissing those causes of action.
ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from so much of an order of the Civil Court as denied the branches of plaintiff’s motion seeking summary judgment on the second through fourth causes of action, and granted the branches of defendant’s cross motion seeking summary judgment dismissing those causes of action on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs).
Contrary to plaintiff’s only argument as to defendant’s cross motion, the affirmation submitted by defendant was sufficient to establish plaintiff’s failure to appear for the EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).
Accordingly, the order, insofar as appealed from, is affirmed.
PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: September 22, 2017
Reported in New York Official Reports at Atlantic Chiropractic, P.C. v Geico Ins. Co. (2017 NY Slip Op 51253(U))
| Atlantic Chiropractic, P.C. v Geico Ins. Co. |
| 2017 NY Slip Op 51253(U) [57 Misc 3d 134(A)] |
| Decided on September 22, 2017 |
| 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 September 22, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L, PESCE, P.J., THOMAS P. ALIOTTA, MARTIN SOLOMON, JJ
2014-2012 K C
against
Geico Ins. Co., Appellant.
The Law Office of Printz & Goldstein (Lawrence J. Chanice, Esq.), for appellant. Zara Javakov, P.C. (Zara Javakov, Esq.), for respondent (no brief filed).
Appeal from an order of the Civil Court of the City of New York, Kings County (Carol Ruth Feinman, J.), entered July 29, 2014, deemed from a judgment of the same court entered August 14, 2014 (see CPLR 5512 [a]). The judgment, entered pursuant to the July 29, 2014 order granting plaintiff’s motion for summary judgment, awarded plaintiff the principal sum of $2,700.
ORDERED that the judgment is reversed, with $30 costs, the order entered July 29, 2014 is vacated, and plaintiff’s motion for summary judgment is denied.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, and defendant opposed the motion on the ground of lack of medical necessity. By order entered July 29, 2014, the Civil Court granted plaintiff’s motion. Defendant’s appeal from the July 29, 2014 order is deemed to be from the judgment entered pursuant thereto on August 14, 2014 (see CPLR 5512 [a]).
Defendant correctly argues that the proof it submitted in opposition to plaintiff’s motion was sufficient to raise triable issues of fact as to whether defendant had timely denied the claims at issue (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) and as to the medical necessity of the services provided.
Accordingly, the judgment is reversed, the order entered July 29, 2014 is vacated, and plaintiff’s motion for summary judgment is denied.
PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: September 22, 2017
Reported in New York Official Reports at Charles Deng Acupuncture, P.C. v 21st Century Ins. Co. (2017 NY Slip Op 51252(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
21st Century Insurance Company, Respondent.
The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Law Office of Bryan M. Rothenberg (Sharon A. Brennan, Esq.), for respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Carmen R. Velasquez, J.), entered July 18, 2014. The order, insofar as appealed from, denied plaintiff’s motion for summary judgment and granted the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for services billed under CPT codes 97810 and 97811 and to compel disclosure.
ORDERED that the order, insofar as appealed from, 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 denied plaintiff’s motion for summary judgment and granted the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for services billed under CPT codes 97810 and 97811, and to compel disclosure.
Contrary to plaintiff’s argument on appeal, it failed to establish its prima facie entitlement to summary judgment, since the proof submitted by plaintiff failed to establish that the claims at issue had not been timely denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant had issued timely denial of claim forms that were conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).
Plaintiff argues that defendant failed to establish that defendant’s fee reductions, which had been done in accordance with the workers’ compensation fee schedule for acupuncture services performed by chiropractors, were proper. However, this court has held, “as a matter of law, that an insurer may use the workers’ compensation fee schedule for acupuncture services performed by chiropractors to determine the amount which a licensed acupuncturist is entitled to receive for such acupuncture services” (Great Wall Acupuncture, P.C. v Geico Ins. Co., 26 Misc 3d 23, 24 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]). Moreover, plaintiff’s arguments on appeal as to defendant’s proof of mailing of the denial of claim forms lack merit.
Furthermore, plaintiff failed to object to the discovery demands at issue within the time prescribed by CPLR 3122 (a) and 3133 (a). Thus, plaintiff is obligated to produce the information sought by defendant except as to matters which are palpably improper or privileged (see Fausto v City of New York, 17 AD3d 520 [2005]; Marino v County of Nassau, 16 AD3d 628 [2005]; AVA Acupuncture, P.C. v AutoOne Ins. Co., 28 Misc 3d 134[A], 2010 NY Slip Op 51350[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]). Plaintiff failed to establish that the discovery demands served by defendant seek information which is palpably improper or privileged.
Accordingly, the order, insofar as appealed from, is affirmed.
PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: September 22, 2017
Reported in New York Official Reports at TAM Med. Supply Corp. v Travelers Ins. Co. (2017 NY Slip Op 51251(U))
| TAM Med. Supply Corp. v Travelers Ins. Co. |
| 2017 NY Slip Op 51251(U) [57 Misc 3d 134(A)] |
| Decided on September 22, 2017 |
| 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 September 22, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2014-1984 Q C
against
Travelers Insurance Company, Respondent.
The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Law Offices of Aloy O. Ibuzor (Shana A. Kleinman, Esq.), for respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered July 31, 2014. 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 the action was premature because plaintiff had failed to provide requested verification.
Contrary to plaintiff’s contentions, defendant’s proof was sufficient to demonstrate, prima facie, that it had properly mailed the initial and follow-up verification requests (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) and that it had not received the requested verification, and, thus, that the action is premature (see Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]). However, as plaintiff further argues, the affidavit submitted by plaintiff in opposition to defendant’s motion, was sufficient to give rise to a presumption that the requested verification had been mailed to, and received by, defendant (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123). In light of the foregoing, there is a triable issue of fact as to whether the action is premature (see Compas Med., P.C. v [*2]Praetorian Ins. Co., 49 Misc 3d 152[A], 2015 NY Slip Op 51776[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).
Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is denied.
PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: September 22, 2017
Reported in New York Official Reports at Laga v American Commerce Ins. Co. (2017 NY Slip Op 51250(U))
| Laga v American Commerce Ins. Co. |
| 2017 NY Slip Op 51250(U) [57 Misc 3d 134(A)] |
| Decided on September 22, 2017 |
| 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 September 22, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2014-1973 Q C
against
American Commerce Insurance Company, Respondent.
The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Bruno, Gerbino & Soriano, LLP (Mitchell L. Kaufman, Esq.), for respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered July 30, 2014. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.
ORDERED that the order is modified by providing that the branch of defendant’s cross motion seeking summary judgment dismissing the sixth cause of action is denied; as so modified, the order is affirmed, without 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 denied plaintiff’s motion for summary judgment, and granted defendant’s cross motion for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath.
Plaintiff correctly argues that defendant failed to establish that it had timely denied the claim underlying the sixth cause of action. Thus, the branch of defendant’s cross motion seeking summary judgment dismissing that cause of action should have been denied. However, plaintiff is not entitled to summary judgment on this cause of action, as plaintiff failed to establish that the claim at issue had not been timely denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]) or that defendant had issued a timely denial of this claim that was conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], [*2]2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).
The order is affirmed as to the remaining causes of action for the reason stated in Laga, as Assignee of Noel, Jocelyn v American Commerce Ins. Co. (— Misc 3d &mdash, 2017 NY Slip Op — [appeal No. 2014-2015 Q C], decided herewith).
Accordingly, the order is modified by providing that the branch of defendant’s cross motion seeking summary judgment dismissing the sixth cause of action is denied.
PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: September 22, 2017
Reported in New York Official Reports at AL Acupuncture, P.C. v Geico Ins. Co. (2017 NY Slip Op 51249(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
Geico Insurance Company, Appellant.
The Law Office of Printz & Goldstein (Lawrence J. Chanice, Esq.), for appellant. Anna Rusanov, P.C., for respondent (no brief filed).
Appeal from an order of the Civil Court of the City of New York, Kings County (Ingrid Joseph, J.), entered July 1, 2014. The order, insofar as appealed from, granted the branch of plaintiff’s motion seeking summary judgment on so much of the complaint as sought to recover upon a claim for services rendered from September 8, 2008 to September 25, 2008, and denied defendant’s cross motion for summary judgment dismissing the complaint.
ORDERED that the order, insofar as appealed from, is modified by providing that the branch of plaintiff’s motion seeking summary judgment on so much of the complaint as sought to recover upon a claim for services rendered from September 8, 2008 to September 25, 2008 is denied, and the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for services rendered from July 8, 2008 to September 5, 2008 are granted; as so modified, the order, insofar as appealed from, is affirmed, without costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. By order entered July 1, 2014, insofar as appealed from, the Civil Court granted the branch of plaintiff’s motion seeking summary judgment on so much of the complaint as sought to recover upon a claim for services rendered from September 8, 2008 to September 25, 2008, and denied defendant’s cross motion.
Defendant demonstrated that it had timely denied the claims for services rendered from [*2]July 8, 2008 to September 5, 2008 (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) and that it had fully paid plaintiff for the services at issue in those claims in accordance with the workers’ compensation fee schedule for acupuncture services performed by chiropractors (see Great Wall Acupuncture, P.C. v Geico Ins. Co., 26 Misc 3d 23 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]). As plaintiff failed to rebut defendant’s showing, the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon these claims should have been granted.
As to so much of the complaint as sought to recover upon a claim for services rendered from September 8, 2008 to September 25, 2008, which was denied based on the assignor’s failure to appear for duly scheduled independent medical examinations (IMEs), we find that defendant is not entitled to summary judgment thereon, as the affidavit from the third-party vendor who had purportedly scheduled the IMEs in question for defendant was, according to the statement of the notary public, sworn to a year before the year of the Civil Court index number which appears on the affidavit. Thus, the Civil Court properly found that defendant had failed to establish the mailing of the IME scheduling letters. However, the branch of plaintiff’s motion seeking summary judgment on so much of the complaint as sought to recover upon this claim should have been denied, as plaintiff failed to establish that the claim had not been timely denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant had issued a denial of claim that was conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).
Accordingly, the order, insofar as appealed from, is modified by providing that the branch of plaintiff’s motion seeking summary judgment on so much of the complaint as sought to recover upon a claim for services rendered from September 8, 2008 to September 25, 2008 is denied, and the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for services rendered from July 8, 2008 to September 5, 2008 are granted.
PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: September 22, 2017
Reported in New York Official Reports at TAM Med. Supply Corp. v New York Cent. Mut. Fire Ins. Co. (2017 NY Slip Op 51248(U))
| TAM Med. Supply Corp. v New York Cent. Mut. Fire Ins. Co. |
| 2017 NY Slip Op 51248(U) [57 Misc 3d 133(A)] |
| Decided on September 22, 2017 |
| 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 September 22, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2014-1899 K C
against
New York Central Mutual Fire Insurance Company, Respondent.
The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Gullo & Associates, LLP (Cristina Corollo, Esq.), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Carolyn E. Wade, J.), entered June 16, 2014. 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 the action was premature because plaintiff had failed to provide requested verification.
Contrary to plaintiff’s contentions, defendant’s proof was sufficient to demonstrate that it had properly mailed the initial and follow-up verification requests (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) and that it had not received the requested verification, and, thus, that the action is premature (see Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]). However, as plaintiff further argues, the affidavit submitted by plaintiff in opposition to defendant’s motion was sufficient to give rise to a presumption that the requested verification had been mailed to, and received by, defendant (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123). In light of the foregoing, there is a triable issue of fact as to whether the action is premature (see Compas Med., P.C. v Praetorian Ins. Co., [*2]49 Misc 3d 152[A], 2015 NY Slip Op 51776[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).
Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is denied.
PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: September 22, 2017
Reported in New York Official Reports at TAM Med. Supply Corp. v Tri State Consumers Ins. Co. (2017 NY Slip Op 51247(U))
| TAM Med. Supply Corp. v Tri State Consumers Ins. Co. |
| 2017 NY Slip Op 51247(U) [57 Misc 3d 133(A)] |
| Decided on September 22, 2017 |
| 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 September 22, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2014-1850 Q C
against
Tri State Consumers Ins. Co., Respondent.
The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Law Office of Laurie DiPreta (Rhonda H. Barry, Esq.), for respondent (no brief filed).
Appeal from an order of the Civil Court of the City of New York, Queens County (Sally E. Unger, J.), entered July 11, 2014. 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 defendant had timely and properly denied the claim at issue based upon plaintiff’s failure to provide requested verification within 120 days of the initial verification request (see 11 NYCRR 65-3.5 [o]). Contrary to plaintiff’s contention, defendant demonstrated, prima facie, that it had not received the requested verification. However, as plaintiff further argues, the affidavit submitted by plaintiff in opposition to defendant’s motion was sufficient to give rise to a presumption that the requested verification had been mailed to, and received by, defendant (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). In light of the foregoing, there is a triable issue of fact as to whether plaintiff provided the requested verification.
Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is denied.
PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: September 22, 2017
Reported in New York Official Reports at Laga v Lancer Ins. Co. (2017 NY Slip Op 51244(U))
| Laga v Lancer Ins. Co. |
| 2017 NY Slip Op 51244(U) [57 Misc 3d 133(A)] |
| Decided on September 22, 2017 |
| 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 September 22, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2014-1811 Q C
against
Lancer Insurance Co., Respondent.
The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Bruno, Gerbino & Soriano, LLP (Mitchell L. Kaufman, Esq.), for respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (William A. Viscovich, J.), entered July 1, 2014. The order granted 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, 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 had failed to appear for duly scheduled examinations under oath (EUOs).
Contrary to plaintiff’s arguments, defendant’s proof sufficiently established proper mailing of the denials and verification requests at issue (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]), and that plaintiff had failed to appear for the scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Plaintiff’s remaining argument is improperly raised for the first time on appeal and, in any event, lacks merit.
Accordingly, the order is affirmed.
PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: September 22, 2017
Reported in New York Official Reports at Laga v Lancer Ins. Co. (2017 NY Slip Op 51243(U))
| Laga v Lancer Ins. Co. |
| 2017 NY Slip Op 51243(U) [57 Misc 3d 133(A)] |
| Decided on September 22, 2017 |
| 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 September 22, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2014-1808 Q C
against
Lancer Insurance Co., Respondent.
The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Bruno, Gerbino & Soriano, LLP (Mitchell L. Kaufman, Esq.), for respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (William A. Viscovich, J.), entered July 1, 2014. The order granted 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, 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 had failed to appear for duly scheduled examinations under oath.
For the reasons stated in Laga, as Assignee of Mondestin, Liliane v Lancer Ins. Co. (— Misc 3d &mdash, 2017 NY Slip Op — [appeal No. 2014-1811 Q C], decided herewith), the order is affirmed.
PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: September 22, 2017