Reported in New York Official Reports at T & J Chiropractic, P.C. v Geico Ins. Co. (2015 NY Slip Op 50772(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
Geico Ins. Co., Respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (James E. d’Auguste, J.), entered August 6, 2012. The order, insofar as appealed from and as limited by the brief, denied the branches of plaintiff’s motion seeking summary judgment on the first, third and fourth causes of action and granted the branches of defendant’s cross motion seeking summary judgment dismissing the third and fourth causes of action.
ORDERED that the order, insofar as appealed from, is modified by providing that the branches of defendant’s cross motion seeking summary judgment on the third and fourth causes of action are 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 moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. Plaintiff appeals, as limited by its brief, from so much of an order of the Civil Court as denied the branches of plaintiff’s motion seeking summary judgment on the first, third and fourth causes of action and granted the branches of defendant’s cross motion seeking summary judgment dismissing the third and fourth causes of action.
The Civil Court properly denied those branches of plaintiff’s motion seeking summary judgment on the first, third and fourth causes of action. While the Civil Court found, in effect, for all purposes in the action (see CPLR 3212 [g]), that plaintiff had submitted the claim forms at issue to defendant and that defendant had not paid these claims within the requisite 30-day period (which findings we do not review on this appeal), the court found neither that defendant had failed to deny these claims or that defendant had issued a legally insufficient denial of claim form with respect to these claims (see EMC Health Prods., Inc. v Geico Ins. Co., 43 Misc 3d 139[A], 2014 NY Slip Op 50786[U] [App Term, 2d, 11th & 13th Jud Dists 2014]), and plaintiff has not made such a showing.
However, the branches of defendant’s cross motion seeking summary judgment dismissing the third and fourth causes of action should have been denied. The ground proffered for the dismissal of these causes of action was that defendant had timely and properly denied the claims underlying these causes of action based on plaintiff’s assignor’s failure to appear for duly scheduled independent medical examinations (IMEs). While defendant submitted properly sworn statements by the chiropractor and doctor who were scheduled to perform the IMEs, neither health care professional demonstrated personal knowledge of the nonappearance of plaintiff’s assignor for the examinations, and therefore defendant failed to establish its entitlement as a matter of law to the dismissal of these causes of action (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; 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]; Quality Health Prods. v Hertz Claim Mgt. Corp., 36 Misc 3d 154[A], 2012 NY Slip Op 51722[U] [App Term, 2d, 11th & 13th Jud Dists 2012]).
Accordingly, the order, insofar as appealed from, is modified by providing that the branches of defendant’s cross motion seeking summary judgment on the third and fourth causes of action are denied.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: May 18, 2015
Reported in New York Official Reports at Tutto Anesthesia v American Country Ins. Co. (2015 NY Slip Op 50738(U))
against
American Country Insurance Company, Defendant-Respondent.
Plaintiffs, as limited by their briefs, appeal from so much of an order of the Civil Court of the City of New York, New York County (Lynn R. Kotler, J.), entered March 21, 2014, as denied their cross motion for summary judgment on their first through sixth causes of action, and granted that branch of defendant’s motion seeking to compel plaintiffs to respond to discovery demands.
Per Curiam.
Order (Lynn R. Kotler, J.), entered March 21, 2014, insofar as appealed from, reversed, with $10 costs, plaintiffs’ cross motion for partial summary judgment on their first through sixth causes of action is granted, and that branch of defendant’s motion seeking to compel discovery is denied.
Plaintiffs-providers established their prima facie entitlement to partial summary judgment on the first-party no-fault claims set forth in their first through sixth causes of action (see Insurance Law ยง 5106[a]; Countrywide Ins. Co. v 563 Grand Med., P.C., 50 AD3d 313 [2008]. In opposition, defendant failed to raise a triable issue. Indeed, defendant’s own documentary submissions, which included plaintiffs’ claim forms that were date-stamped received by defendant, established defendant’s receipt of plaintiffs’ claims and that payment of benefits was overdue (see Fair Price Med. Supply, Inc. v St. Paul Travelers Ins. Co., 16 Misc 3d 8, 9 [2007]).
Defendant waived any objections based on lack of proof of assignment since it did not seek verification of the assignments (see Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 320 [2007]; Hospital for Joint Diseases v Allstate Ins. Co., 21 AD3d 348, 348-349 [2005]). Nor may defendant assert the defense of excessive fees, inasmuch as it failed to establish that its denials were timely issued within the statutory 30-day period (see Mercury Cas. Co. v Encare, Inc., 90 AD3d 475 [2011], lv denied 18 NY3d 810 [2012]).
Defendant also failed to demonstrate that summary judgment is premature due to outstanding discovery pertaining to plaintiffs’ prima facie case, since defendant did not make the [*2]required showing that further discovery may raise a triable issue of fact (see Interboro Ins. Co. v Clennon, 113 AD3d 596 [2014]; LMK Psychological Servs., P.C. v Liberty Mut. Ins. Co., 30 AD3d 727 [2006]). Defendant’s speculative contention that further discovery may support its lack of coverage defense is improperly raised for the first time on appeal (see Mount Sinai Hosp. v Dust Tr., Inc., 117 AD3d 921 [2014]), and is, in any event, an insufficient basis for denying plaintiffs’ motion (see Interboro Ins. Co. v Clennon, 113 AD3d at 597]).
In the absence of a cross appeal by defendant, we do not address the propriety of the court’s denial of the request to toll interest. Defendant’s remaining arguments, to the extent preserved for appellate review, have been considered and rejected.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur I concur I concur
Decision Date: May 18, 2015
Reported in New York Official Reports at Harmonic Physical Therapy v Encompass Home & Auto Ins. Co. (2015 NY Slip Op 50733(U))
against
Encompass Home and Auto Insurance Company, Defendant-Appellant.
Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Gerald Lebovits, J.), entered November 14, 2013, which denied its motion for summary judgment dismissing the complaint.
Per Curiam.
Appeal from order (Gerald Lebovits, J.), entered November 14, 2013, deemed, pursuant to CPLR 5517(b), to be taken from the subsequent order (same court and Judge), entered July 17, 2014, which, upon reargument, adhered to the original determination denying defendant’s motion for summary judgment dismissing the complaint, and so considered, order reversed, with $10 costs, motion granted and complaint dismissed. The Clerk is directed to enter judgment accordingly.
The defendant-insurer made a prima facie showing of entitlement to summary judgment dismissing this action seeking recovery of first-party no-fault benefits by submitting evidence establishing that it timely and properly mailed the notices for independent medical examinations (IMEs) to plaintiff’s assignor and his counsel, and that the assignor failed to appear at the scheduled IMEs (see American Tr. Ins. Co. v Lucas, 111 AD3d 423 [2013]; American Tr. Ins. Co. v Solorzano, 108 AD3d 449 [2013]).
Contrary to the motion court’s conclusion, defendant submitted competent evidence of the assignor’s nonappearance in the form of an affirmation of the scheduled examining physician and a sworn affidavit of an employee of defendant’s third-party IME scheduler attesting to the affiants’ personal knowledge of their office practices and policies in situations where an assignor fails to appear for a scheduled IME (see American Tr. Ins. Co. v. Lucas, 111 AD3d at 424). 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]), relied upon by the motion court, does not warrant a contrary result, since in that case the affiant did not demonstrate personal knowledge of the law firms’s practices and procedures in establishing appearances at scheduled examinations under oath (compare Quality Psychological Servs., P.C. v Interboro Mut. Indem. Ins. Co., 36 Misc 3d 146[A], 2012 NY Slip Op 51628[U] [App Term, 2d, 11th & 13th Jud Dists 2012]; accord [*2]Allstate Ins. Co. v Pierre, 123 AD3d 618 [2014]).
In opposition, plaintiff did not specifically deny the assignor’s nonappearance or otherwise raise a triable issue with respect thereto, or as to the mailing or reasonableness of the underlying notices (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [2011], lv denied 17 NY3d 705 [2011]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur I concur I concur
Decision Date: May 18, 2015
Reported in New York Official Reports at XVV, Inc. v MVAIC (2015 NY Slip Op 50771(U))
[*1]| XVV, Inc. v MVAIC |
| 2015 NY Slip Op 50771(U) [47 Misc 3d 149(A)] |
| Decided on May 18, 2015 |
| 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 18, 2015
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2012-2032 K C
against
MVAIC, Appellant.
Appeal from an order of the Civil Court of the City of New York, Kings County (Genine D. Edwards, J.), entered July 19, 2012. The order granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint.
ORDERED that the order is reversed, with $30 costs, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted.
In this action by a provider to recover assigned first-party no-fault benefits, defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) appeals from an order of the Civil Court which granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint.
Since defendant established that there had been no timely filing of a notice of claim and that leave had not been sought to file a late notice of claim (see Insurance Law § 5208 [a], [c]), plaintiff’s assignor is not a “covered person” (Insurance Law § 5221 [b] [2]). Thus, a condition precedent to plaintiff’s right to apply for payment of no-fault benefits from defendant has not been satisfied (M.N.M. Med. Health Care, P.C. v MVAIC, 22 Misc 3d 128[A], 2009 NY Slip Op 50041[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Ocean Diagnostic Imaging v Motor Veh. Acc. Indem. Corp., 8 Misc 3d 137[A], 2005 NY Slip Op 51271[U] [App Term, 2d & 11th Jud Dists 2005]).
Accordingly, the order is reversed, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: May 18, 2015Compas Med., P.C. v MVAIC (2015 NY Slip Op 50774(U))
Reported in New York Official Reports at Compas Med., P.C. v MVAIC (2015 NY Slip Op 50774(U))
[*1]| Compas Med., P.C. v MVAIC |
| 2015 NY Slip Op 50774(U) [47 Misc 3d 149(A)] |
| Decided on May 18, 2015 |
| 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 18, 2015
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2012-2473 K C
against
MVAIC, Appellant.
Appeal from an order of the Civil Court of the City of New York, Kings County (Reginald A. Boddie, J.), entered August 16, 2012. The order, insofar as appealed from, denied defendant’s cross motion for summary judgment dismissing the complaint.
ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant’s cross motion for summary judgment dismissing the complaint is granted.
In this action by a provider to recover assigned first-party no-fault benefits, defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) appeals from so much of an order of the Civil Court as denied defendant’s cross motion for summary judgment dismissing the complaint.
Since plaintiff and its assignor were aware of the identity of the owner of the vehicle which had struck the assignor, plaintiff, as assignee, was required to exhaust its remedies against the vehicle’s owner before seeking relief from MVAIC (Hauswirth v American Home Assur. Co., 244 AD2d 528 [1997]; Modern Art Med., P.C. v MVAIC, 22 Misc 3d 126[A], 2008 NY Slip Op 52586[U] [App Term, 2d & 11th Jud Dists 2008]; Doctor Liliya Med., P.C. v MVAIC, 21 Misc 3d 143[A], 2008 NY Slip Op 52453[U] [App Term, 2d & 11th Jud Dists 2008]). Here, plaintiff did not demonstrate that it had exhausted its remedies against the owner of the vehicle.
Accordingly, the order, insofar as appealed from, is reversed and defendant’s cross motion for summary judgment dismissing the complaint is granted.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: May 18, 2015Queens Med. Supply, Inc. v MVAIC (2015 NY Slip Op 50775(U))
Reported in New York Official Reports at Queens Med. Supply, Inc. v MVAIC (2015 NY Slip Op 50775(U))
[*1]| Queens Med. Supply, Inc. v MVAIC |
| 2015 NY Slip Op 50775(U) [47 Misc 3d 149(A)] |
| Decided on May 18, 2015 |
| 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 18, 2015
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2012-2638 K C
against
MVAIC, Appellant.
Appeal from a judgment of the Civil Court of the City of New York, Kings County (Patricia Anne Williams, J.), entered April 23, 2012. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $2,001.75 upon a claim for supplies furnished to assignor Jean Prophete.
ORDERED that the judgment is reversed, with $30 costs, and the matter is remitted to the Civil Court for the entry of judgment in favor of defendant dismissing the complaint insofar as it seeks to recover upon a claim for supplies furnished to assignor Jean Prophete.
At a nonjury trial in this action by a provider to recover assigned first-party no-fault benefits, a sworn notice of intention to make claim form executed by assignor Jean Prophete was admitted into evidence, in which she identified the vehicle which struck her. Following the trial, the Civil Court dismissed the complaint insofar as it related to assignor Jeanienne Ramdoo and awarded a separate judgment in favor of plaintiff in the principal sum of $2,001.75 with respect to its claim relating to supplies furnished to Jean Prophete, from which judgment defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) appeals.
Since plaintiff and its assignor, Jean Prophete, were aware of the identity of the owner of the vehicle which had struck her, plaintiff, as assignee, was required to exhaust its remedies against the vehicle’s owner before seeking relief from defendant (Hauswirth v American Home Assur. Co., 244 AD2d 528 [1997]; Modern Art Med., P.C. v MVAIC, 22 Misc 3d 126[A], 2008 NY Slip Op 52586[U] [App Term, 2d & 11th Jud Dists 2008]; Doctor Liliya Med., P.C. v MVAIC, 21 Misc 3d 143[A], 2008 NY Slip Op 52453[U] [App Term, 2d & 11th Jud Dists 2008]). Here, plaintiff did not demonstrate that it had exhausted its remedies against the owner of the vehicle.
Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for the entry of judgment in favor of defendant dismissing the complaint insofar as it seeks to recover upon a claim for supplies furnished to assignor Jean Prophete.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: May 18, 2015Gutierrez v Farmington Cas. Co. (2015 NY Slip Op 50781(U))
Reported in New York Official Reports at Gutierrez v Farmington Cas. Co. (2015 NY Slip Op 50781(U))
[*1]| Gutierrez v Farmington Cas. Co. |
| 2015 NY Slip Op 50781(U) [47 Misc 3d 150(A)] |
| Decided on May 18, 2015 |
| 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 18, 2015
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-6 Q C
against
Farmington Casualty Company, Respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (James E. d’Auguste, J.), entered October 17, 2012. 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 which granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.
Contrary to plaintiff’s contention, defendant established that the independent medical examination scheduling letters and the denial of claim form had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Plaintiff’s remaining contentions either lack merit, or are not properly before this court as the arguments are being raised for the first time on appeal, and we decline to consider them (see Joe v Upper Room Ministries, Inc., 88 AD3d 963 [2011]; Gulf Ins. Co. v Kanen, 13 AD3d 579 [2004]).
Accordingly, the order is affirmed.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: May 18, 2015Delta Diagnostic Radiology, P.C. v Esurance (2015 NY Slip Op 50785(U))
Reported in New York Official Reports at Delta Diagnostic Radiology, P.C. v Esurance (2015 NY Slip Op 50785(U))
[*1]| Delta Diagnostic Radiology, P.C. v Esurance |
| 2015 NY Slip Op 50785(U) [47 Misc 3d 151(A)] |
| Decided on May 18, 2015 |
| 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 18, 2015
PRESENT:
2013-97 Q C May 18, 2015 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM : 2nd, 11th & 13th JUDICIAL DISTRICTS PRES ENT : PESCE, P.J., ALIOTTA and SOLOMON, JJ. DECIDED
against
Esurance, Respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (James E. d’Auguste, J.), entered December 7, 2012. 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 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 defendant’s cross motion for summary judgment dismissing the complaint.
Contrary to plaintiff’s contention, defendant established that the examination under oath (EUO) scheduling letters had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]), and that plaintiff’s assignor had failed to appear for the duly scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Since defendant demonstrated that plaintiff’s assignor had failed to comply with a condition precedent to coverage (id. at 722) and that defendant had timely denied (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16) the claims on that ground, defendant was entitled to summary judgment dismissing the complaint.
In light of the foregoing, we need not pass upon plaintiff’s contention that defendant failed to establish that plaintiff’s assignor had also failed to appear for duly scheduled independent medical examinations. Plaintiff’s remaining contention is not properly before this court, as this argument is being raised for the first time on appeal, and we decline to consider it (see Joe v Upper Room Ministries, Inc., 88 AD3d 963 [2011]; Gulf Ins. Co. v Kanen, 13 AD3d 579 [2004]).
Accordingly, the order is affirmed.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: May 18, 2015Delta Diagnostic Radiology, P.C. v Maya Assur. Co. (2015 NY Slip Op 50786(U))
Reported in New York Official Reports at Delta Diagnostic Radiology, P.C. v Maya Assur. Co. (2015 NY Slip Op 50786(U))
[*1]| Delta Diagnostic Radiology, P.C. v Maya Assur. Co. |
| 2015 NY Slip Op 50786(U) [47 Misc 3d 151(A)] |
| Decided on May 18, 2015 |
| 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 18, 2015
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-100 Q C
against
Maya Assurance Company, Respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (James E. d’Auguste, J.), entered December 6, 2012. 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 defendant’s cross motion for summary judgment 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.
Plaintiff correctly argues on appeal that the affidavit submitted by defendant did not sufficiently set forth a standard office practice or procedure that would ensure that the letters scheduling independent medical examinations (IMEs) of plaintiff’s assignor had been properly addressed and mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). As a result, defendant failed to demonstrate that the IMEs had been properly scheduled, and thus, that plaintiff’s assignor had failed to appear at duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 722 [2006]). Consequently, defendant is not entitled to summary judgment dismissing the complaint.
However, contrary to plaintiff’s contention, plaintiff failed to demonstrate its prima facie entitlement to summary judgment, as the affidavit plaintiff submitted in support of its motion failed to establish that the claim at issue had not been timely denied or that defendant had issued a timely denial of claim that was conclusory, vague or without merit as a matter of law (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d 33 [2013]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; see also Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]).
Accordingly, the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: May 18, 2015Great Health Care Chiropractic, P.C. v Esurance (2015 NY Slip Op 50787(U))
Reported in New York Official Reports at Great Health Care Chiropractic, P.C. v Esurance (2015 NY Slip Op 50787(U))
[*1]| Great Health Care Chiropractic, P.C. v Esurance |
| 2015 NY Slip Op 50787(U) [47 Misc 3d 151(A)] |
| Decided on May 18, 2015 |
| 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 18, 2015
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-164 Q C
against
Esurance, Respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Carmen R. Velasquez, J.), entered December 13, 2012. 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 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 defendant’s cross motion for summary judgment dismissing the complaint.
Contrary to plaintiff’s sole contention with respect to defendant’s cross motion, defendant’s supporting papers established that plaintiff’s assignor had failed to appear for duly scheduled examinations under oath (EUOs) (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Since an assignor’s appearance at an EUO “is a condition precedent to the insurer’s liability on the policy” (id. at 722), we need not reach plaintiff’s contention that it was entitled to summary judgment.
Accordingly, the order is affirmed.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: May 18, 2015