Reported in New York Official Reports at Herman v Country-Wide Ins. Co. (2022 NY Slip Op 50916(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
Country-Wide Insurance Company, Respondent.
Glinkenhouse Queen, Esqs. (Alan Queen of counsel), for appellant. Thomas A. Torto, Esq. (Thomas Torto and Jason Levine of counsel), for respondent.
Appeals from orders of the Civil Court of the City of New York, Queens County (David M. Hawkins, J.), entered February 27, 2019 and April 14, 2020. The February 27, 2019 order, insofar as appealed from as limited by the brief, sua sponte tolled the accrual of all no-fault statutory interest. The April 14, 2020 order, insofar as appealed from as limited by the brief, denied the branch of plaintiff’s motion seeking to vacate and/or modify so much of the February 27, 2019 order as was made sua sponte.
ORDERED that the appeals are consolidated for purposes of disposition; and it is further,
ORDERED that the appeal from so much of the February 27, 2019 order as sua sponte tolled the accrual of all no-fault statutory interest is dismissed as no appeal as of right lies from an order made sua sponte; and it is further,
ORDERED that the April 14, 2020 order, insofar as appealed from, is modified by providing that no-fault statutory interest is tolled from June 27, 1997 until April 5, 2018; as so modified, the order, insofar as appealed from, is affirmed, without costs.
In 1995, plaintiff commenced this action to recover assigned first-party no-fault benefits for services rendered to his assignor for injuries allegedly sustained in a motor vehicle accident in August 1994. Defendant appeared and answered. After defendant failed to appear for trial in May 1997, an inquest was held in June 1997, following which a written decision dated June 27, [*2]1997 was issued awarding plaintiff judgment in the sum of $1,480 with interest from April 21, 1995. On April 5, 2018, plaintiff moved for “an Order compelling the clerk to enter judgment based upon the inquest held in this matter.” Defendant cross-moved to dismiss the action, arguing that plaintiff had failed to submit a proposed judgment within 60 days pursuant to Uniform Rules for New York City Civil Court (22 NYCRR) § 208.33 (a). By order entered February 27, 2019, the Civil Court found that all no-fault statutory interest should be tolled because plaintiff had unreasonably delayed in seeking to enter judgment (see former 11 NYCRR 65.15 [h] [now 11 NYCRR 65-3.9 (d)]) and directed the clerk “to enter judgment . . . for the Plaintiff in the amount of $1,480.00 with no prejudgment interest,” and denied defendant’s cross motion. Defendant has since paid the sum of $1,480.
Thereafter, plaintiff moved for, among other things, an order “vacating and/or modifying that portion of the Court’s [February 27, 2019] order . . . that is sua sponte.” Defendant opposed the motion. By order entered April 14, 2020, the Civil Court denied the branch of plaintiff’s motion seeking to vacate and/or modify the sua sponte portion of the February 27th order, stating that plaintiff would not be awarded any prejudgment interest, and finding that no portion of the February 27th order was made sua sponte.
As limited by his brief, plaintiff appeals from so much of the February 27, 2019 order as sua sponte tolled the accrual of all no-fault statutory interest and from so much of the April 14, 2020 order as denied the branch of plaintiff’s motion seeking to vacate and/or modify the portion of the February 27, 2019 order as was made sua sponte. The appeal from so much of the February 27, 2019 order as sua sponte tolled the no-fault statutory interest pursuant to 11 NYCRR 65-3.9 (d) is dismissed as it did not address a demand for relief made on notice and, therefore, is not appealable as of right (see CCA 1702 [a]; Sholes v Meagher, 100 NY2d 333 [2003]; Biotech Surgical Supply, Inc. v Country Wide Ins. Co., 66 Misc 3d 135[A], 2019 NY Slip Op 52143[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]).
As to the April 14, 2020 order, we agree with the Civil Court’s determination pursuant to former 11 NYCRR 65.15 (h) (now 11 NYCRR 65-3.9 [d]) that plaintiff unreasonably waited more than 20 years before moving to have a judgment entered upon the decision issued after the inquest. The no-fault regulations provide that, “[i]f an applicant has submitted a dispute to arbitration or the courts, interest shall accumulate, unless the applicant unreasonably delays the arbitration or court proceeding” (former 11 NYCRR 65.15 [h] [now 11 NYCRR 65-3.9 (d)]). A no-fault plaintiff “should not be rewarded for his years of inaction by receiving a windfall of interest” (Aminov v Country Wide Ins. Co., 43 Misc 3d 87, 89 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]). Contrary to plaintiff’s argument, this case is not analogous to cases in which we have held that interest should not be tolled between a settlement and the entry of a judgment upon the settlement (see e.g. Seaside Rehabilitation v Allstate Ins. Co., 63 Misc 3d 162[A], 2019 NY Slip Op 50918[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]). A settlement is the resolution of a case to which both parties have agreed, and the entry of a judgment is only permitted where a settling defendant fails to do what it has promised to do: pay the agreed-upon sum within 21 days of tender of the required paperwork (see CPLR 5003-a). In contrast, a case that goes to inquest or trial concludes in a judgment, and plaintiff should not be awarded a windfall of punitive interest because he failed to enter a judgment for more than 20 years after the inquest. Thus, so much of the February 27, 2019 order as tolled the no-fault [*3]statutory interest from June 27, 1997, the date of the decision after inquest, until April 5, 2018, when plaintiff moved to enter a judgment based upon that decision, was proper and the Civil Court correctly declined to vacate that part of the order.
However, the Civil Court should have vacated so much of the February 27, 2019 order as declined to award interest from April 21, 1995 until June 27, 1997, which interest was awarded by the June 27, 1997 decision, as there has been no finding that plaintiff unreasonably delayed this case during that period. We note that since the subject accident took place in 1994, no-fault statutory interest should be calculated at a compounded rate (see former 11 NYCRR 65.15 [h] [1]; Matter of B.Z. Chiropractic, P.C. v Allstate Ins. Co., 197 AD3d 144 [2021]; Belt Parkway Imaging, P.C. v State Wide Ins. Co., 30 Misc 3d 127[A], 2010 NY Slip Op 52229[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]).
Plaintiff’s remaining arguments regarding interest lack merit.
Accordingly, the April 14, 2020 order, insofar as appealed from, is modified by providing that no-fault statutory interest is tolled from June 27, 1997 until April 5, 2018.
ALIOTTA, P.J., TOUSSAINT and GOLIA, JJ., concur.
ENTER:Paul Kenny
Chief Clerk
Decision Date: September 9, 2022
Reported in New York Official Reports at Forest Park Acupuncture, P.C. v Nationwide Prop. & Cas. Ins. Co. (2022 NY Slip Op 50915(U))
Forest Park Acupuncture, P.C. v Nationwide Prop. & Cas. Ins. Co. |
2022 NY Slip Op 50915(U) [76 Misc 3d 132(A)] |
Decided on September 9, 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 September 9, 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
2020-683 K C
against
Nationwide Property & Casualty Insurance Co., Appellant.
Hollander Legal Group, P.C. (Allan S. Hollander of counsel), for appellant. Zara Javakov, P.C. (Victoria Tarasova of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Consuelo Mallafre Melendez, J.), entered January 9, 2020. The order, insofar as appealed from and as limited by the brief, denied defendant’s motion for summary judgment dismissing the complaint.
ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is granted.
In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order of the Civil Court as denied defendant’s motion which had sought summary judgment dismissing the complaint on the ground that plaintiff’s assignor failed to appear for duly scheduled examinations under oath (EUOs). The Civil Court found, in effect pursuant to CPLR 3212 (g), that plaintiff established the timely mailing of the bills and defendant established the timely mailing of its denials, and limited the issue for trial to defendant’s “EUO no show defense as to the March 27, 2017 date.”
In its motion, defendant established that a letter scheduling the EUO for March 27, 2017 was timely and properly mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). The affirmation of defendant’s counsel, as well as the transcript of the March 27, 2017 EUO, was sufficient to establish that plaintiff’s assignor failed to appear for [*2]that EUO (Pavlova v Nationwide Ins., 70 Misc 3d 144[A], 2021 NY Slip Op 50213[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]). Consequently, as plaintiff failed to raise a triable issue of fact in opposition to defendant’s motion or otherwise challenge the implicit CPLR 3212 (g) finding in defendant’s favor, defendant is entitled to summary judgment dismissing the complaint.
Accordingly, the order, insofar as appealed from, is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.
ALIOTTA, P.J., TOUSSAINT and GOLIA, JJ., concur.
ENTER:Paul Kenny
Chief Clerk
Decision Date: September 9, 2022
Reported in New York Official Reports at Forest Park Acupuncture, P.C. v Nationwide Prop. & Cas. Ins. Co. (2022 NY Slip Op 50914(U))
Forest Park Acupuncture, P.C. v Nationwide Prop. & Cas. Ins. Co. |
2022 NY Slip Op 50914(U) [76 Misc 3d 132(A)] |
Decided on September 9, 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 September 9, 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
2020-682 K C
against
Nationwide Property & Casualty Insurance Co., Appellant.
Hollander Legal Group, P.C. (Allan S. Hollander of counsel), for appellant. Zara Javakov, P.C. (Zara Javakov of counsel), for respondent (no brief filed).
Appeal from an order of the Civil Court of the City of New York, Kings County (Consuelo Mallafre Melendez, J.), entered January 9, 2020. The order, insofar as appealed from and as limited by the brief, denied defendant’s motion for summary judgment dismissing the complaint.
ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is granted.
In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order of the Civil Court as denied defendant’s motion which had sought summary judgment dismissing the complaint on the ground that plaintiff’s assignor failed to appear for duly scheduled examinations under oath (EUOs). The Civil Court found, in effect pursuant to CPLR 3212 (g), that plaintiff established the timely mailing of the bills and defendant established the timely mailing of its denials, and limited the issue for trial to defendant’s “EUO no show defense as to the March 27, 2017 date.”
For the reasons stated in Forest Park Acupuncture, P.C., as Assignee of Jose Enzo v Nationwide Prop. & Cas. Ins. Co. (— Misc 3d —, 2022 NY Slip Op — [appeal No. 2019-683 K C], decided herewith), the order, insofar as appealed from, is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.
ALIOTTA, P.J., TOUSSAINT and GOLIA, JJ., concur.
ENTER:Paul Kenny
Chief Clerk
Decision Date: September 9, 2022
Reported in New York Official Reports at Tam Med. Supply Corp. v American Ind. Ins. Co. (2022 NY Slip Op 50913(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
American Independent Ins. Co., Appellant, Omni Indemnity Company, American Independent Insurance Companies, Inc., and Good2Go Auto Insurance, Defendants.
Tam Medical Supply Corp., as Assignee of Destin, Sabrina, Respondent
against
American Independent Insurance Companies, Inc., and Good2Go Auto Insurance, Appellants, American Independent Ins. Co. and Omni Indemnity Company, Defendants.
Freiberg, Peck & Kang, LLP (Yilo J. Kang of counsel), for appellants. The Rybak Firm, PLLC (Oleg Rybak of counsel), for respondent (no brief filed).
Appeals from orders of the Civil Court of the City of New York, Kings County (Harriet L. Thompson, J.), each entered November 20, 2018. The first order (appeal No. 2020-271 K C) denied a motion to dismiss the complaint insofar as asserted against defendant American Independent Ins. Co. The second order (appeal No. 2022-137 K C), insofar as appealed from, denied the branches of a motion seeking to dismiss so much of the complaint as was asserted against defendants American Independent Insurance Companies, Inc. and Good2Go Auto [*2]Insurance.
ORDERED that the appeals are consolidated for purposes of disposition; and it is further,
ORDERED that the order being appealed under appeal number 2020-271 K C is reversed, with $30 costs, and the motion to dismiss the complaint insofar as asserted against defendant American Independent Ins. Co. is granted; and it is further
ORDERED that the order being appealed under appeal number 2022-137 K C, insofar as appealed from, is reversed, with $30 costs, and the branches of the motion seeking to dismiss so much of the complaint as was asserted against defendants American Independent Insurance Companies, Inc. and Good2Go Auto Insurance are granted.
In this action by a provider to recover assigned first-party no-fault benefits, the affidavit of service alleges that the summons and complaint were served by mail pursuant to CPLR 312-a. However, plaintiff’s papers do not contain an acknowledgment of service. Defendant American Independent Ins. Co. moved to dismiss the complaint insofar as asserted against it on the ground that plaintiff had failed to obtain personal jurisdiction over it. Defendants American Independent Insurance Companies, Inc., Good2Go Auto Insurance and Omni Indemnity Company moved, in a single motion, to dismiss so much of the complaint as was asserted against them on the ground that plaintiff had failed to obtain personal jurisdiction over them. Plaintiff opposed both motions and cross-moved for summary judgment. Defendant American Independent Ins. Co. appeals (appeal No. 2020-271 K C) from an order of the Civil Court entered November 20, 2018 denying the motion to dismiss the complaint insofar as asserted against it. Defendants American Independent Insurance Companies, Inc., and Good2Go Auto Insurance appeal (appeal No. 2022-137 K C) from so much of a separate order of the Civil Court, also entered November 20, 2018, as denied the branches of the motion seeking to dismiss so much of the complaint as was asserted against them.
For the reasons stated in Longevity Med. Supply, Inc. v American Ind. Ins. Co. (69 Misc 3d 127[A], 2020 NY Slip Op 51118[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]), the order being appealed under appeal number 2020-271 K C and the order being appealed under appeal number 2022-137 K C, insofar as appealed from, are reversed. The first motion, by defendant American Independent Ins. Co., is granted, and the branches of the second motion seeking to dismiss so much of the complaint as was asserted against defendants American Independent Insurance Companies, Inc., and Good2Go Auto Insurance are granted.
ALIOTTA, P.J., TOUSSAINT and GOLIA, JJ., concur.
ENTER:Paul Kenny
Chief Clerk
Decision Date: September 9, 2022
Reported in New York Official Reports at MK Healthcare Med. PC v Travelers Ins. Co. (2022 NY Slip Op 50824(U))
MK Healthcare
Medical PC A/A/O MARLEINE SULLY, Plaintiff(s),
against Travelers Insurance Company, Defendant. |
Index No. CV-701018-20/RI
Plaintiff’s Counsel
Joseph Sparacio Attorney At Law PLLC
292 Nelson
Avenue
Staten Island, NY 10308
(718) 966-0055
Defendant’s Counsel
Law Offices of Tina Newson-Lee
PO Box 2904
Hartford, CT 06104
(917)
778-6500
Brendan T. Lantry, J.
MK Healthcare Medical PC (“MK Healthcare”) as assignee of Marleine Sully (“Assignor”) (collectively referred as “Plaintiff”), commenced this action to recover $913.39 in assigned first-party no-fault benefits from Defendant Travelers Insurance Company (“Defendant”).
Plaintiff represents that the Assignor sustained injuries during an accident that occurred on December 31, 2018, in which the Assignor was a front-seat passenger. According to the Plaintiff, Defendant improperly failed to pay for treatment rendered to the Assignor in connection with her alleged injuries in the amount of $913.39. Specifically, Plaintiff alleges that Defendant failed to pay for a “NCV w/f wave lower” (“F Wave”) and “Needle EMG lower” [*2](“EMG”) (collectively “Procedures”) performed on April 22, 2019. The Procedures were electrodiagnostic studies of the Assignor’s lower extremities. While Plaintiff argues that Defendant is responsible for paying for the Procedures, Defendant maintains that it was under no such obligation since the Procedures were not medically necessary.
On August 3, 2022, the Court held a virtual bench trial during which both Plaintiff and Defendant were represented by counsel. Pursuant to a stipulation entered into by the parties, Plaintiff and Defendant stipulated that MK Healthcare met its prima facie burden and consented to the admission of evidence, namely medical records, medical reports, expert witness disclosure, as well as portions of the Referral Guidelines for Electrodiagnostic Medicine Consultations. The parties also stipulated to the expertise of the Defendant’s expert, Ayman Hadhoud, M.D. (“Dr. Hadhoud”). Accordingly, the only matter at issue in the trial was whether Defendant’s denial of the claim on the ground of medical necessity was proper under Insurance Law § 5102[a][1].
Defendant’s sole witness was Dr. Hadhoud, a licensed physician and acupuncturist, who performed a peer review of MK Healthcare’s medical records. Dr. Hadhoud testified that Procedures prescribed by MK Healthcare (Richard A. Gasalberti, M.D.) were not medically necessary. Dr. Hadhoud testified as to his review of the relevant MK Healthcare records, which revealed that MK Healthcare recommended Assignor undergo “EMG/nerve conduction studies of the lower extremities to electrophysiologically document for lumbar radiculopathy.” Dr. Hadhoud testified that based upon his review of the medical records, the EMG was not necessary since the Assignor’s neurological exam was normal and there was no clinical presentation that would necessitate an EMG. Dr. Hadhoud further testified that considering the medical records from MK Healthcare, the F Wave was also not medically necessary because such procedure was not necessary in the context of ruling out radiculopathy in the Assignor.
The Court notes that during the trial, the Plaintiff did not call any witnesses. Furthermore, the only evidence that Plaintiff submitted in support of its claim that the Defendant violated Insurance Law § 5102[a][1] consisted of the documentary evidence that was stipulated into evidence by the parties.
Discussion
Under Insurance Law § 5101, “an insurer must pay first-party benefits of up to $50,000 per person to reimburse a person for covered ‘basic economic loss’ (Insurance Law 5102[a]), subject to the limitations of Insurance Law 5108.” (Govt. Employees Ins. Co. v Avanguard Med. Group, PLLC, 127 AD3d 60, 63 [2d Dept 2015], affd, 27 NY3d 22 [2016]). “The no-fault law defines “basic economic loss” (Insurance Law § 5102[a]) as ‘[a]ll necessary expenses incurred for: (i) medical, hospital … [and] surgical … services’ (id. § 5102[a][1][i]) as well as loss of earnings from work.” (Hernandez v Merchants Mut. Ins. Co., 206 AD3d 978, 979 [2d Dept 2022] (citing Insurance Law 5102[a][1]). See Govt. Employees Ins. Co. v Avanguard Med. Group, PLLC, 127 AD3d 60, 63 [2d Dept 2015], affd, 27 NY3d 22 [2016]; Forrest Chen Acupuncture Services, P.C. v Geico Ins. Co., 15 Misc 3d 137(A) [App Term 2007], affd, 54 AD3d 996 [2d Dept 2008]). As held by the Appellate Division, Second Department, “like the statute, the regulations promulgated thereunder expressly state that reimbursable medical expenses consist of ‘necessary expenses.'” (Hernandez v. Merchants Mut. Ins. Co., 206 AD3d [*3]978, 979 [2d Dept 2022] (citing to Long Is. Radiology v. Allstate Ins. Co., 36 AD3d 763, 764-65 [2d Dept 2007])).
The Court finds that based upon Defendant’s denial of claim forms and the findings of Dr. Hadhoud, encompassed in his testimony and report, Defendant sufficiently demonstrated that there was no medical necessity for the Procedures. (See Urban Radiology, P.C. v. Tri-State Consumer Ins. Co., 911 N.Y.S.2d 697 [App. Term, 2d Dept., 2010]). The Court found that Dr. Hadhoud’s testimony to be medically sound and credible. Dr. Hadhoud also sufficiently demonstrated that he relied upon his examination as well as his review of the Assignor’s medical records in order to reach his opinion that the Procedures were not medically necessary for the Assignor’s condition. Dr. Hadhoud’s testimony “demonstrated a factual basis and medical rationale for the determination that there was a lack of medical necessity” for the Procedures. (New Horizon Surgical Ctr., L.L.C. v. Allstate Ins. Co., 52 Misc 3d 139(A) [App Term 2016]). Based upon the credible testimony of Dr. Hadhoud and the relevant medical records submitted to the Court during trial, the Court finds that Defendant met its burden and demonstrated its entitlement to judgment in its favor.
The Court further finds that Plaintiff failed to demonstrate its entitlement to judgment or otherwise rebut Defendant’s showing. As noted above, “Plaintiff called no witnesses to rebut the defendant’s showing of a lack of medical necessity.” (See New Horizon Surgical Ctr., L.L.C. v. Allstate Ins. Co., 41 N.Y.S.3d 720 [App. Term 2d Dept., 2016] (holding that the Civil Court should have dismissed the complaint after Plaintiff failed to call a witness to rebut Defendant’s showing of lack of medical necessity.”)). Furthermore, Plaintiff failed to submit any evidence, such as the testimony of the referring physician or of its own medical expert, to establish that the Procedures were medically necessary.
Accordingly, it is hereby
ORDERED that judgment is rendered in favor of Defendant; and it is
ORDERED that the matter is dismissed with prejudice.
The foregoing constitutes the Decision and Order of the Court.
Dated: August 25, 2022
_____________________________
Staten
Island, New York
Hon. Brendan T. Lantry
Judge of the Civil Court
Reported in New York Official Reports at State Farm Mut. Auto. Ins. Co. v Emote Med. Servs., P.C. (2022 NY Slip Op 50818(U))
State Farm Mutual
Automobile Insurance Company and
STATE FARM FIRE AND CASUALTY COMPANY, Plaintiffs, against Emote Medical Services, P.C., Defendant. |
Index No. 151954/2022
Rivkin Radler LLP, Uniondale, NY (Vincent J. Pontrello of counsel), for plaintiffs.
No appearance for defendant.
Gerald Lebovits, J.
In this action, plaintiffs seek a declaratory judgment relating to no-fault insurance coverage. Unlike the typical no-fault declaratory-judgment action, plaintiffs do not seek relief against a range of medical providers who have each claimed benefits for treatment provided following a particular covered automobile collision. Instead, plaintiffs have brought this action against one provider, addressing benefits claims for treatment provided following dozens of collisions. (See NYSCEF No. 1 at カ 1 [verified complaint]; NYSCEF No. 2 [listing claims].)
Plaintiffs allege that they denied each of these claims because defendant failed in each instance to appear for a properly requested examination under oath (EUO). (NYSCEF No. 1 at カカ 26-32.) They allege that these EUOs were aimed at ascertaining whether defendant is ineligible to collect no-fault benefits under 11 NYCRR 65-3.16 (a) (12) due to, among other things, being controlled by nonphysicians in willful violation of New York law. (Id. at カカ 23-24; see Andrew Carothers, M.D., P.C. v Progressive Ins. Co., 33 NY3d 389, 403-405 [2019] [*2][discussing this ground for denying no-fault claims].)
Plaintiffs now move without opposition for default judgment under CPLR 3215. The motion is denied.
DISCUSSION
Plaintiffs’ motion papers establish that defendant was properly served; and defendant has not appeared. The question is thus whether plaintiffs’ verified complaint, standing alone, provides proof of the facts constituting plaintiff’s claim. (See CPLR 3215 [f].) It does not.
A plaintiff denying a provider’s claim for no-fault benefits based on asserted failures to appear for an EUO must demonstrate that the EUO was timely and properly requested. (See Liberty Mut. Ins. Co. v Carranza, 2021 NY Slip Op 50284[U], at *1-2 [Sup Ct, NY County Apr. 7, 2021], citing American Transit Ins. Co. v Longevity Med. Supply, Inc., 131 AD3d 841, 841 [1st Dept 2015].) Plaintiffs have not satisfied these requirements.
Plaintiffs’ verified complaint alleges only that “[e]ach request was timely made,” that plaintiffs then “issued a timely denial on the prescribed denial on the prescribed NF-10 form,” and that these denials “were timely, proper, and consistent with the No-Fault Laws.” (NYSCEF No. 1 at カカ 27, 31, 32.) Given the dozens of bills, EUO requests and follow-up requests, and denials involved (see NYSCEF No. 2 [list of claims]), these conclusory statements are insufficient. That is particularly true since plaintiffs have not submitted any evidence that the many EUO requests, follow-up requests, and denials in question were not simply generated by plaintiffs, but also correctly addressed and mailed to defendant. Plaintiffs do provide a lengthy, detailed chart of bills and EUO requests, organized by the underlying benefits claim. (See id.) That chart, however, omits the most important date for purposes of assessing timeliness—the date on which plaintiffs received the bills. (See id.; 11 NYCRR 65-3.5 [b] [requiring insurers to request EUO-based verification within 15 business days of receiving a provider bill].)
Additionally, the complaint alleges that defendant has “systematically failed and/or refused to appear for an EUO” on many occasions over the past year. (NYSCEF No. 1 at カ 29.) This allegation treats a failure to appear and a refusal to appear as interchangeable. But that is not necessarily so. For example, a provider may properly condition its appearance at an EUO on receiving the insurer’s specific objective justification for requesting the EUO under 11 NYCRR 65-3.5 (e). (See Kemper Independence Ins. Co. v Accurate Monitoring, LLC, 73 Misc 3d 585, 586-587, 589 [Sup Ct, NY County 2021].) Plaintiffs’ motion papers do not address whether defendant ever made that kind of request—or, if it did, what the response was.[FN1] Similarly, [*3]although plaintiffs allege that each EUO request to defendant “endeavored to select places and times for the EUO that would be convenient to [defendant] and advised that a change of time, date, manner and location would be considered if requested” (NYSCEF No. 1 at カ 28), plaintiffs do not say whether defendant ever did request a change of that type for logistical/convenience reasons, and, if so, how plaintiffs responded.
Moreover, plaintiffs have not indicated whether any of defendant’s claims for treatment—or other benefits claims arising out of the numerous collisions underlying defendant’s treatment bills—have given rise to other no-fault proceedings by or against plaintiffs. It would be somewhat curious, given the sheer number of insurance claims appearing in plaintiffs’ EUO-request chart, if this action were the very first time that litigation involving one of those claims has arisen—possible, but curious. And if this action were not the first time that one of the no-fault claims identified in the chart has led to litigation, plaintiffs’ declaratory-judgment claims here would be subject to an obvious claim-preclusion objection.
Claim preclusion, to be sure, is an affirmative defense. (See CPLR 3211 [a] [5].) Plaintiffs thus were not required to rule it out in their complaint. For the same reason, the absence of any allegation addressing claim-preclusion-related issues is not itself grounds to deny plaintiffs’ default-judgment motion. But that absence does underscore the comparative thinness of plaintiffs’ motion papers compared to the typical showing in a no-fault coverage action—particularly given the number of claims and bills involved and the amount of money at stake.
The difficulty in this action is that plaintiffs’ true grievance appears to be their conclusion that defendant is not providing legitimate medical services and is ineligible under 11 NYCRR 65-3.16 (a) (12) to receive no-fault benefits. But this action does not pursue and support that grievance through seeking a declaration that speaks directly to defendant’s putative lack of eligibility. Instead, plaintiffs are seeking, in effect, to achieve that same result by relying on many asserted EUO-nonappearances to obtain a declaratory judgment supporting en masse plaintiffs’ denials of defendant’s treatment bills.
Proceeding in this manner might be simpler and more efficient from plaintiffs’ perspective than bringing many individual declaratory judgment actions, each premised on a particular failure of defendant to appear for an EUO. As reflected in the discussion above, though, the flip side of plaintiffs’ efficiency gains is that this court loses the information and documentation it needs to properly evaluate plaintiffs’ claims about defendant’s repeated EUO-nonappearances. (Cf. Travelers Indemnity Co. v Parisien, 2020 NY Slip Op 51561[U], at *3-4 [Sup Ct, Suffolk County Dec. 29, 2020] [expressing concern in a no-fault declaratory-judgment action about 13 different sets of treatment bills that “[u]ltimately, in the guise of convenience, plaintiffs are, in effect, seeking to circumvent the statutorily prescribed procedures that govern disputes between no-fault insurers and no-fault health services providers over the validity of reimbursement claims and the health services provider’s eligibility”].) In these circumstances, on this record, this court is loath to grant plaintiffs the default judgment that they seek.
At the same time, the court does not rule out the possibility that plaintiffs could still provide the details (and supporting documents) about their EUO requests needed to show that defendant repeatedly failed without justification to appear for timely and properly scheduled EUOs. The court thus sees no basis at this time to dismiss plaintiffs’ action altogether.
Accordingly, it is
ORDERED that plaintiffs’ motion for default judgment under CPLR 3215 is denied [*4]without prejudice; and it is further
ORDERED that if plaintiffs do not bring a renewed default-judgment motion within 60 days of entry of this order, the action will be administratively dismissed; and it is further
ORDERED that plaintiffs serve a copy of this order with notice of its entry on defendant by certified mail, return receipt requested, directed to defendant’s last-known address.
DATE 8/24/2022Footnotes
Footnote 1: Although the issue is not squarely presented by the current motion, plaintiff’s complaint does not provide that justification either. It alleges only that “various facts and circumstances . . . called into question” defendant’s eligibility to collect no-fault benefits and the legitimacy of defendant’s treatment and billing, without identifying any of those facts and circumstances. (NYSCEF No. 1 at 24.) That would not be sufficient under 11 NYCRR 65-3.5 (e), were the issue to be contested. (See Kemper Independence, 73 Misc 3d at 589 n 4; Country-Wide Ins. Co. v Delacruz, 71 Misc 3d 247, 251 [Sup Ct, NY County 2021], affd 205 AD3d 473, 473-474 [1st Dept 2022].)
Reported in New York Official Reports at Shafai Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2022 NY Slip Op 50907(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
State Farm Mutual Automobile Ins. Co., Respondent.
The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for appellant. Rivkin Radler, LLP (Stuart M. Bodoff of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Sandra E. Roper, J.), dated August 6, 2021. The order (1) denied plaintiff’s motion to, in effect, deem its service of process on defendant on April 3, 2018 as having satisfied so much of an order of the Civil Court dated November 14, 2019 as directed plaintiff to serve defendant within 30 days, (2) sua sponte dismissed the complaint with prejudice based on a finding that plaintiff had not complied with that portion of the November 14, 2019 order, and (3) denied as moot defendant’s cross motion to dismiss the complaint based on res judicata.
ORDERED that, on the court’s own motion, so much of the notice of appeal as is from so much of the order as, sua sponte, dismissed the complaint with prejudice is deemed an application for leave to appeal from that portion of the order, and leave to appeal is granted (see CCA 1702 [c]); and it is further,
ORDERED that the order is reversed, with $30 costs, so much of the order as, sua sponte, dismissed the complaint with prejudice based on a finding that plaintiff had not complied with so much of an order of the Civil Court dated November 14, 2019 as directed plaintiff to serve defendant within 30 days is vacated, plaintiff’s motion to, in effect, deem its service of process upon defendant on April 3, 2018 as having satisfied that portion of the November 14, 2019 order is granted, and defendant’s cross motion to dismiss the complaint based on res judicata is granted.
On March 24, 2017, plaintiff commenced this action (see CCA 400) to recover assigned [*2]first-party no-fault benefits. Plaintiff alleged that it served defendant with the summons and complaint on April 6, 2017. Defendant did not appear or answer, and, by order entered November 6, 2017, the Civil Court awarded plaintiff a default judgment. In January 2018, defendant moved to vacate the default judgment. By order dated November 14, 2019, the Civil Court granted defendant’s motion to vacate the default judgment and directed plaintiff to “effectuate proper service” of the summons and complaint within 30 days of the order. Plaintiff then moved by order to show cause, signed on November 26, 2019, to, in effect, deem an alleged April 3, 2018 service of the summons and complaint upon defendant as having satisfied plaintiff’s obligation to “effectuate proper service” within 30 days of the November 14, 2019 order. The November 26, 2019 order to show cause stayed the action pending a final determination of the motion. Defendant opposed plaintiff’s motion, asserting that the April 3, 2018 service attempt was untimely, and cross-moved, in the event plaintiff’s motion was granted, to dismiss the complaint pursuant to CPLR 3211 (a), on the ground that the action is barred by the doctrines of res judicata and collateral estoppel based on a declaratory judgment of the Supreme Court, Nassau County, entered on May 20, 2019. The declaratory judgment, which was attached to defendant’s moving papers, declared that “Shafai Acupuncture [plaintiff herein] has no right to receive payment for [the bills at issue in the instant action, among others] because Shafai Acupuncture failed and/or refused to appear for Examinations Under Oath requested by STATE FARM, and thus breached a condition of coverage and violated its obligations under the New York No-Fault Laws.” By order dated August 6, 2021, the Civil Court denied plaintiff’s motion, sua sponte dismissed the complaint with prejudice upon a finding that “Plaintiff failed to properly effectuate service within thirty days of Decision/Order dated November 14, 2019 as directed,” and denied defendant’s cross motion as moot.
While no appeal as of right lies from the sua sponte portion of the August 6, 2021 order (see CCA 1702 [a] [2]; Sholes v Meagher, 100 NY2d 333 [2003]), we deem the notice of appeal to be an application for leave to appeal from that portion of the order and grant plaintiff’s application (see CCA 1702 [c]). We agree with plaintiff’s argument on appeal that, at the time of the Civil Court’s August 6, 2021 order, the 30-day period that the Civil Court’s November 14, 2019 order gave plaintiff to effectuate service had not yet expired due to the stay contained in plaintiff’s November 26, 2019 order to show cause. Consequently, so much of the August 6, 2021 order as, sua sponte, dismissed the complaint with prejudice for failure to effectuate service within the time frame set forth in the November 14, 2019 order is vacated.
With respect to plaintiff’s motion, it is undisputed that plaintiff commenced this action on March 24, 2017, and that the attempted service on April 3, 2018 occurred after the expiration of the 120-day time period allotted by CPLR 306-b (see CCA 403). However, by giving plaintiff 30 days to effectuate service in the November 14, 2019 order, the Civil Court implicitly found that an extension of time for service was warranted under CPLR 306-b. In our opinion, under the circumstances presented, the Civil Court should have deemed plaintiff’s April 3, 2018 service as satisfying the service that plaintiff had been directed to effectuate in the November 14, 2019 order.
In view of the foregoing, defendant’s cross motion pursuant to CPLR 3211 (a) to dismiss the complaint on the ground that the action is barred by the doctrines of res judicata and collateral estoppel is no longer moot. In lieu of remitting the cross motion to the Civil Court for [*3]a new determination thereof, we review the cross motion in the interest of judicial economy (see S & J Serv. Ctr., Inc. v Commerce Commercial Group, Inc., 178 AD3d 977, 979 [2019]; Bonafede v Bonito, 145 AD3d 842, 843-844 [2016]).
In light of the May 20, 2019 declaratory judgment, defendant’s cross motion to dismiss the complaint should have been granted based on the doctrine of res judicata (see Wave Med. Servs., P.C. v Farmers New Century Ins. Co., 67 Misc 3d 137[A], 2020 NY Slip Op 50555[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]; Healing Art Acupuncture, P.C. v 21st Century Ins. Co., 59 Misc 3d 139[A], 2018 NY Slip Op 50583[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]; EBM Med. Health Care, P.C. v Republic W. Ins., 38 Misc 3d 1, 3 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]), as any judgment in favor of plaintiff in the present action would destroy or impair rights or interests established by the judgment in the declaratory judgment action (see Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304, 306-307 [1929]; Flushing Traditional Acupuncture, P.C. v Kemper Ins. Co., 42 Misc 3d 133[A], 2014 NY Slip Op 50052[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]).
Accordingly, the order is reversed, so much of the order as, sua sponte, dismissed the complaint with prejudice based on a finding that plaintiff had not complied with so much of an order of the Civil Court dated November 14, 2019 as directed plaintiff to serve defendant within 30 days is vacated, plaintiff’s motion to, in effect, deem its service of process upon defendant on April 3, 2018 as having satisfied that portion of the November 14, 2019 order is granted, and defendant’s cross motion to dismiss the complaint based on res judicata is granted.
ALIOTTA, P.J., WESTON and TOUSSAINT, JJ., concur.
ENTER:Paul Kenny
Chief Clerk
Decision Date: August 19, 2022
Reported in New York Official Reports at Laga v Unitrin Auto & Home Ins. Co. (2022 NY Slip Op 50906(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
Unitrin Auto and Home Insurance Company, Appellant.
Gullo & Associates, LLP (Kristina O’Shea of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for respondent.
Appeal from a judgment of the Civil Court of the City of New York, Kings County (Odessa Kennedy, J.), entered January 27, 2020. The judgment, entered upon a decision of that court dated November 8, 2019, after a nonjury trial, awarded plaintiff the principal sum of $3,158.02. The appeal from the judgment brings up for review so much of an order of that court (Louis L. Nock, J.) dated August 16, 2017 as denied defendant’s motion to dismiss the complaint and made implicit CPLR 3212 (g) findings in plaintiff’s favor.
ORDERED that, on the court’s own motion, the notice of appeal from the decision dated November 8, 2019 is deemed a premature notice of appeal from the judgment entered January 27, 2020 (see CPLR 5520 [c]); and it is further,
ORDERED that the judgment is reversed, with $30 costs, so much of the order dated August 16, 2017 as denied defendant’s motion to dismiss the complaint and made implicit CPLR 3212 (g) findings in plaintiff’s favor is vacated, defendant’s motion to dismiss the complaint is granted, and the matter is remitted to the Civil Court for the entry of a judgment in favor of defendant dismissing the complaint.
Adelaida M. Laga, P.T. (Laga) commenced this action against Unitrin Auto and Home Insurance Company to recover first-party no-fault benefits for medical services provided to its assignor, Belle Au Monde Corriolant, as a result of injuries Corriolant allegedly sustained in an automobile accident on August 7, 2011. In its answer, dated August 21, 2015, defendant [*2]identified itself as Kemper Independence Insurance Company (Kemper). Before Laga commenced this action, a declaratory judgment action had been commenced in Supreme Court, Bronx County, by Kemper against Laga, six other providers, and the assignor herein, Corriolant, alleging that Corriolant had breached the terms of the insurance policy in question by failing to appear for duly scheduled independent medical examinations. On August 4, 2016, an order was entered in the Supreme Court declaratory judgment action declaring that Laga and five other providers were “not entitled to no-fault insurance coverage for the motor vehicle accident which occurred on August 7, 2011.”
In September 2016, defendant moved in the Civil Court to dismiss the complaint pursuant to CPLR 3211 (a) (5) and (7), contending that the instant action is barred by virtue of the order in the declaratory judgment action. Plaintiff opposed defendant’s motion, raising no procedural issues, and cross-moved for summary judgment. By order dated August 16, 2017, the Civil Court (Louis L. Nock, J.) denied defendant’s motion, implicitly denied plaintiff’s cross motion, found that plaintiff had established “its prima facie case,” and held that “the sole issue that remains for trial is the privity between Kemper and [defendant].” On the trial date, the Civil Court (Odessa Kennedy, J.), upon denying defense counsel’s request for an adjournment to allow defendant to secure a witness to testify on the issue of privity between Kemper and defendant, ordered that judgment be entered in plaintiff’s favor. A judgment in favor of plaintiff in the principal sum of $3,158.02 was entered on January 27, 2020.
Collateral estoppel, or issue preclusion, precludes a party from relitigating an issue where “the issue in the second action is identical to an issue which was raised, necessarily decided and material in the first action, and the plaintiff had a full and fair opportunity to litigate the issue in the earlier action” (Parker v Blauvelt Volunteer Fire Co., 93 NY2d 343, 349 [1999]; see D’Arata v New York Cent. Mut. Fire Ins. Co., 76 NY2d 659 [1990]; Manko v Gabay, 175 AD3d 484 [2019]). The party seeking to rely on collateral estoppel has the burden of establishing that the issue actually litigated and determined in the prior action is identical to the issue on which preclusion is sought (see Forcino v Miele, 122 AD2d 191, 193 [1986]; Triboro Quality Med. Supply, Inc. v State Farm Mut. Auto. Ins. Co., 36 Misc 3d 131[A], 2012 NY Slip Op 51289[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]). The party attempting to defeat the application of collateral estoppel has the burden of establishing the absence of a full and fair opportunity to litigate (see D’Arata, 76 NY2d at 664; Uptodate Med. Servs., P.C. v State Farm Mut. Auto. Ins. Co., 23 Misc 3d 42, 44 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]).
Here, defendant established that the issue of whether plaintiff was entitled to receive no-fault benefits in connection with the August 7, 2011 accident involving Corriolant was identical to the issue previously decided in the declaratory judgment action and plaintiff failed to establish that it had not received a full and fair opportunity to litigate in the declaratory judgment action. Indeed, plaintiff appeared in that action and the order in that action even indicates that plaintiff submitted opposition to the motion giving rise to the order (see Reid v Reid, 198 AD3d 993, 994 [2021]; Miller v Falco, 170 AD3d 707, 709 [2019]; David v State, 157 AD3d 764, 765-766 [2018]; Matter of Abady, 22 AD3d 71, 85 [2005]). Thus, defendant was entitled to dismissal of the complaint on the ground of collateral estoppel.
We note that, while defendant failed to raise the affirmative defense of collateral estoppel in its August 21, 2015 answer, defendant had no basis to assert that defense before August 4, [*3]2016, when the order in the declaratory judgment action was entered (see Metro Health Prods., Inc. v Nationwide Ins., 52 Misc 3d 138[A], 2016 NY Slip Op 51122[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]; Renelique v State-Wide Ins. Co., 50 Misc 3d 137[A], 2016 NY Slip Op 50095[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]). Furthermore, an unpleaded defense may serve as the basis for the dismissal of a complaint in the absence of surprise or prejudice to the opposing party (see Sullivan v American Airlines, Inc., 80 AD3d 600, 602 [2011]; Vixan Cab Corp. v Chelsea Rental Corp., 72 Misc 3d 128[A], 2021 NY Slip Op 50594[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]).
Accordingly, the judgment is reversed, so much of the order dated August 16, 2017 as denied defendant’s motion to dismiss the complaint and made implicit CPLR 3212 (g) findings in plaintiff’s favor is vacated, defendant’s motion to dismiss the complaint is granted, and the matter is remitted to the Civil Court for the entry of a judgment in favor of defendant dismissing the complaint.
ALIOTTA, P.J., WESTON and TOUSSAINT, JJ., concur.
ENTER:Paul Kenny
Chief Clerk
Decision Date: August 19, 2022
Reported in New York Official Reports at Island Life Chiropractic Pain Care, PLLC v American Ind. Ins. Co. (2022 NY Slip Op 50903(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
American Independent Ins. Co., Omni Indemnity Company, American Independent Insurance Companies, Inc. and Good2Go Auto Insurance, Appellants.
Freiberg, Peck & Kang, LLP (Yilo J. Kang of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell, Esq.), for respondent (no brief filed).
Appeal from an order of the Civil Court of the City of New York, Kings County (Consuelo Mallafre Melendez, J.), entered October 31, 2019. The order, insofar as appealed from, denied the branches of defendants’ joint motion seeking to dismiss so much of the complaint as was asserted against American Independent Ins. Co., American Independent Insurance Companies, Inc., and Good2Go Auto Insurance, respectively.
ORDERED that so much of the appeal as is by Omni Indemnity Company is dismissed, as Omni Indemnity Company is not aggrieved by the order, insofar as appealed from (see CPLR 5511; Rinaldi v Evenflo Co., Inc., 62 AD3d 856 [2009]); and it is further,
ORDERED that the order, insofar as appealed from, is modified by providing that the branches of the motion seeking to dismiss so much of the complaint as was asserted against American Independent Ins. Co. and American Independent Insurance Companies, Inc., respectively, 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, defendants appeal from so much of an order as denied the branches of defendants’ joint motion seeking to dismiss so much of the complaint as was asserted against defendants American Independent Ins. [*2]Co., American Independent Insurance Companies, Inc., and Good2Go Auto Insurance, respectively.
For the reasons stated in Island Life Chiropractic Pain Care, PLLC, as Assignee of Vernizier, Jean Willy v American Ind. Ins. Co. (— Misc 3d —, 2022 NY Slip Op — [appeal No. 2020-251 K C], decided herewith), the order, insofar as appealed from, is modified by providing that the branches of the motion seeking to dismiss so much of the complaint as was asserted against American Independent Ins. Co. and American Independent Insurance Companies, Inc., respectively, are granted.
ALIOTTA, P.J., TOUSSAINT and GOLIA, JJ., concur.
ENTER:Paul Kenny
Chief Clerk
Decision Date: August 19, 2022
Reported in New York Official Reports at MSB Physical Therapy, P.C. v Nationwide Ins. (2022 NY Slip Op 50902(U))
MSB Physical Therapy, P.C. v Nationwide Ins. |
2022 NY Slip Op 50902(U) [76 Misc 3d 131(A)] |
Decided on August 19, 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 19, 2022
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : THOMAS P. ALIOTTA, P.J., MICHELLE WESTON, WAVNY TOUSSAINT, JJ
2020-419 K C
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 (Carolyn Walker-Diallo, J.), entered May 13, 2019. The order granted defendant’s motion for summary judgment dismissing the complaint and denied 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, plaintiff appeals from an order of the Civil Court granting defendant’s motion for summary judgment dismissing the complaint on the ground that plaintiff failed to appear at duly scheduled examinations under oath (EUOs), and denying plaintiff’s cross motion for summary judgment.
Plaintiff repeatedly sent letters to defendant which sought to reschedule the EUOs for unspecified dates two months beyond the date on which defendant had initially scheduled the EUOs. Defendant complied with plaintiff’s requests. Under the circumstances, contrary to plaintiff’s sole contention on appeal with respect to defendant’s motion, plaintiff failed to demonstrate the existence of an issue of fact as to whether the EUOs were scheduled at reasonably convenient dates (see 11 NYCRR 65-3.5 [e]).
Accordingly, the order is affirmed.
ALIOTTA, P.J., WESTON and TOUSSAINT, JJ., concur.
ENTER:Paul Kenny
Chief Clerk
Decision Date: August 19, 2022