Reported in New York Official Reports at Park Ave. Chiropractic & Health Care PC v Maya Assur. Co. (2021 NY Slip Op 50804(U))
[*1]| Park Ave. Chiropractic & Health Care PC v Maya Assur. Co. |
| 2021 NY Slip Op 50804(U) [72 Misc 3d 1219(A)] |
| Decided on August 18, 2021 |
| Civil Court Of The City Of New York, Bronx County |
| Howard-Algarin, J. |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| As corrected in part through August 30, 2021; it will not be published in the printed Official Reports. |
Decided on August 18, 2021
Park Avenue
Chiropractic & Health Care PC AAO Stecy Antoine, Plaintiff,
against Maya Assurance Company, Defendant. |
Index No. CV-713853-19/BX
Counsel for Plaintiff: Park Avenue Chiropractic & Health Care PC AAO Stacey Antione by Sander Barshay Grossman, LLC
Counsel for Defendant: Maya Assurance Company by Di Martini & Yi, LLP
John A. Howard-Algarin, J.
Recitation as Required by CPLR §2219(a): The following papers were read on this Motion for Summary Judgment
Papers NumberedDefendant’s Notice of Motion, Affirmation in Support, and Exhibits 1
Plaintiff’s Cross Motion, Affirmation in Opposition 2
Defendant’s Affirmation in Opposition and Reply Affirmation 3
Upon the foregoing cited papers, the Decision and Order of this Court is as follows:
In this action to recover assigned no-fault benefits, Petitioner seeks payment of eleven claims in the sum of $1,867.65 for medical services rendered to Assignor between July 23, 2018 and April 9, 2019, for injuries sustained in a motor vehicle accident. Defendant now moves, pursuant to CPLR § 3212, for summary judgment asserting that Plaintiff failed to appear for two scheduled examinations under oath (EUO), which failures, it is argued, entitle Defendant to deny the claims. Alternatively, Defendant seeks partial summary judgment on five of the eleven claims for services rendered by Plaintiff between November 26, 2018 and March 14, 2019, for want of medical necessity. Defendant relies on an Independent Medical Examination (IME) report from Dr. Robert Costello, D.C., as grounds for the alternative relief requested.
Plaintiff opposes the instant motion asserting that it provided Defendant with a written objection to the first scheduled EUO, and therefore, did not have to appear at either examination. Additionally, Plaintiff seeks to justify the medical necessity of the services provided by reliance on a medical report from Dr. Samuel Park, D.C. Because, as more fully explained below, this Court finds that Plaintiff was required to participate in the duly scheduled EUOs, notwithstanding its written objection to same to Defendant, it hereby grants Defendant’s motion and dismisses the Complaint with prejudice.
On a motion for summary judgment, the moving party must present sufficient evidence in admissible form to show the absence of any material issue of fact and the right to entitlement to judgment as a matter of law (Alvarez v Prospect Hospital, 68 NY2d 320, 326 [1986]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]). If the moving party has [*2]established sufficient proof to warrant summary judgment, the burden shifts to the party opposing the motion to produce evidentiary proof in admissible form sufficient to establish the existence of material facts which require a trial (Zuckerman v City of New York, 49 NY2d 557 [1980]). If there are no material, triable issues of fact, summary judgment must be granted (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395 [1957]). Issue finding, not issue determination, is the key to summary judgment (Rose v Da Ecib USA, 259 AD2d 258 [1st Dept 1999]). A mere conclusory assertion devoid of evidentiary facts is insufficient to defeat a well-supported summary judgment motion, as is reliance upon surmise, conjecture, or speculation (Grullon v City of New York, 297 AD2d 261 [1st Dept 2002]).
The failure of a person eligible for no-fault benefits or its assignee to appear for properly noticed EUOs constitutes a breach of a condition precedent to coverage (New York Presbyterian Hospital v Country—Wide Insurance, 17 NY3d 586 [2011]; Unitrin Advantage Ins Co v Dowd 194 AD3d 507 [1st Dept 2021]; Mapfre Ins. Co. of New York v Manoo, 140 AD3d 468, 470 [1st Dept 2016]; Allstate Ins. Co. v Pierre, 123 AD3d 618 [1st Dept 2014]). Such failure permits a carrier to deny, retroactively, all claims going back to the date of loss regardless of whether the denials were timely issued or whether the initial denials were based a different reason (Unitrin Advantage Ins. Co. v Bayshore Physical Therapy PPLC et al, 82 AD3d 559, 560 [1st Dept 2016]; Stephen Fogel Psychological PC v Progressive Casualty Ins. Co., 35 AD3d 720, 721-22 [2d Dept 2006]). To succeed on a summary judgment motion based on the failure of an assignee to appear at EOUs, an insurance carrier first must establish that it properly mailed notices for the EUOs (American Transit Ins. Co. v Lucas, 111 AD3d 423 [1st Dept 2013]). The presumption of receipt of mail may be established by either proof of actual mailing or proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed (Nassau Ins. Co. v Murray, 46 NY2d 828 [1978]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d [2d Dept 2001]; Matter of Francis v Wing, 263 AD2d 432 [1st Dept 1999]). In addition, the carrier must establish that the assignee failed to appear at said examinations (American Transit Ins. Co. v Lucas, 111 AD3d 423).
Relevant here, in support of its motion, Defendant submitted an affirmation from attorney Arthur J. DeMartini, whose firm conducts examinations under oath on Defendant’s behalf and received Defendant’s request to schedule Plaintiff’s two EUOs (Exh. G, DeMartini Aff. In Supp.). In the affirmation, DeMartini stated that before each EUO notice was mailed to Plaintiff and its counsel, he personally: (i) reviewed the EUO notice letters; (ii) verified the mailing addresses for Plaintiff and its counsel; and then, (iii) mailed the notices at the post office. Copies of the notices scheduling the EUOs for August 22, 2018 and September 14, 2019 were attached to his affirmation. Also attached to Defendant’s motion were certified transcripts of the two EUOs Plaintiff failed to attend. The transcripts reflect that on each EUO date, the assigned attorney, Helen Cohen of DeMartini & Yi, L.L.P., waited approximately 45 minutes prior to making a statement on the record cancelling the event upon Plaintiff’s failure to appear. Based on this evidence, Defendant has established that it properly notified Plaintiff and its attorney of both examinations, and that Plaintiff failed to appear on both occasions. Thus, Defendant has demonstrated its prima facia entitlement to summary judgment herein (Metro Psychological Services P.C. v Mercury Cas. Co., 49 Misc 3d 143 [A] [App Term, 1st Dept 2015]). Having done so, the burden now shifts to Plaintiff to raise a question of fact requiring a trial.
In opposition, Plaintiff does not dispute Defendant’s representation that it failed to appear [*3]at the EUOs. Rather, Plaintiff submits a letter dated August 23, 2018, in which Plaintiff’s counsel acknowledged receipt of Defendant’s notice for the August 22, 2018 EUO and requested that Defendant justify the need for same. Plaintiff’s letter also advised Defendant that the time and location of the August 22, 2018 EUO was not convenient for Plaintiff or its counsel. At the threshold, this Court finds that Plaintiff’s August 23, 2018 objection to the August 22, 2018 EUO was untimely insofar as the objecting document — written a day after the scheduled event — could not afford Defendant an opportunity either to reschedule the event to a new more convenient date or time, or to make the location of the examination more convenient (Accord, American Chiropractic, PC, v GEICO, 57 Misc 3d 529, 531 [Kings Cty Civ Ct 2017][construing as timely a request (or objection) by assignee to insurer when made “sufficiently prior to the date on which an EUO is scheduled to allow for a response”]). To be sure, by objecting to the EUO after the examination date has passed, Plaintiff, in addition to precluding any meaningful response by Defendant, would unnecessarily cause Defendant to incur otherwise avoidable expenses in the form of counsel and court reporter fees. Such a waste of time, effort and resources cannot be justified by this Court. Viewed this way, this Court finds that an objection to an EUO written after the scheduled examination date is, in effect, a nullity and of no effect. Further, to the extent Plaintiff received a second EUO notice and failed altogether to object to same, its objection will not now be heard (Flow Chiropractic, P.C. v Travelers Home and Mar. Ins. Co., 44 Misc 3d 132[A]).
Moreover, while courts have varied respecting whether an insurer must, in response to an objection or a demand for justification of an EUO, respond to same as a precondition to an assignor or assignee’s participation therein (compare, Amer. Transit Ins. Co. v Jaga Med. Svcs, P.C., 128 AD3d 441 [1st Dept 2015][unanimously reversing trial court’s grant of summary judgment upon finding that “the reason for an EUO is a fact essential” to granting summary relief]; with Bronx Chiropractic Care, P.C. v State Farm Ins. Co., 63 Misc 3d 132[A] [App Term, 2nd Dept 2019][ no requirement that insurance carrier provide reason for its demand for EUO]; Flow Chiropractic, P.C. v Travelers Home and Mar. Ins Co., 44 Misc 3d 132[A] [App Term, 2d Dept 2014]), we need not wrestle with that issue here. As noted above, the Court deems Plaintiff’s late objection letter a nullity requiring no response. Hence, Plaintiff’s late objection letter did not excuse its failure to appear at either of the duly noticed EUOs scheduled by Defendant. Thus, Plaintiff has failed to raise a triable question of fact to defeat Defendant’s well-supported summary judgment motion.
Finally, because Plaintiff’s failure to appear at the scheduled EUOs permits Defendant to deny, retroactively, all claims going back to the date of loss (Unitrin Advantage Ins. Co. v Bayshore Physical Therapy PPLC et al, 82 AD3d at 560; Stephen Fogel Psychological PC v Progressive Casualty Ins. Co., 35 AD3d at 721-22), this Court need not reach the medical necessity arguments raised by the parties in their respective submissions.
Based on the foregoing, Defendant’s summary judgment motion is GRANTED in its entirety, and the Clerk is directed to enter judgment granting the motion and dismissing the Complaint with prejudice.
Defendant is directed to serve a copy of this order, with notice of entry, upon Plaintiff within thirty (30) days of the entry date hereof.
This constitutes the decision and order of the Court.
Dated: August 18, 2021Bronx, New York
/S/
John A. Howard-Algarin, J.C.C.Cautious Care Med., P.C. v 21st Century Ins. Co. (2021 NY Slip Op 50785(U))
Reported in New York Official Reports at Cautious Care Med., P.C. v 21st Century Ins. Co. (2021 NY Slip Op 50785(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 of and Karina Barska counsel), for appellant. Law Offices of Buratti, Rothenberg & Burns (Kenneth F. Popper of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Jill R. Epstein, J.), entered November 1, 2019. The order, insofar as appealed from, granted the branches of defendant’s motion seeking to vacate a judgment of that court entered September 25, 2018 upon defendant’s failure to appear or answer the complaint, and to enlarge defendant’s time to serve and file an answer.
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 an order of the Civil Court as granted the branches of defendant’s motion seeking to vacate a judgment entered September 25, 2018 upon defendant’s failure to appear or answer the complaint, and to enlarge defendant’s time to serve and file an answer.
To vacate the default judgment pursuant to CPLR 5015 (a) (1), defendant was required to demonstrate a reasonable excuse for its default and a potentially meritorious defense to the action (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]; Progressive Cas. Ins. Co. v Excel Prods., Inc., 171 AD3d 812 [2019]; Westchester Med. Ctr. v Allstate Ins. Co., 80 AD3d 695 [2011]). The Civil Court found that defendant demonstrated both “a reasonable excuse and meritorious defense,” and, on appeal, plaintiff limits its argument to defendant’s excuse, specifically stating that it is unnecessary, under the circumstances presented, for this court to consider whether defendant demonstrated that it has a meritorious defense. “The determination as to what constitutes a reasonable excuse lies within the sound discretion of the trial court, and will not be disturbed if the record supports such determination” (Green Apple Mgt. Corp. v Aronis, 55 AD3d 669, 669 [2008]).
In support of its motion, defendant submitted an affidavit by the person alleged to have received service of process, who stated that she always follows defendant’s practices and [*2]procedures for receipt of process. These practices and procedures would have created a record of the instant lawsuit, and defendant demonstrated that it does not have any such record. Defendant’s affiant further explained, in detail, that the records she created on July 8, 2015, the date service herein was allegedly made, as part of defendant’s practices and procedures, demonstrate that she received process in 14 other cases on that date. Under these circumstances, we find that the Civil Court did not improvidently exercise its discretion in determining that defendant had established a reasonable excuse for its default.
Plaintiff’s remaining appellate contentions are relevant only to the branch of defendant’s motion seeking to dismiss the complaint, which was denied. Plaintiff is not aggrieved thereby and defendant has not cross-appealed from it.
Accordingly, the order, insofar as appealed from, is affirmed.
ALIOTTA, P.J., ELLIOT and TOUSSAINT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: August 6, 2021
Reported in New York Official Reports at Blackman v 21st Century Ins. Co. (2021 NY Slip Op 50771(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 and Karina Barska of counsel), for appellant. Law Offices of Buratti, Rothenberg & Burns (Konstantinos Tsirkas of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Rosemarie Montalbano, J.), dated September 18, 2019. 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, defendant 21st Century Insurance Company (21st Century) moved for summary judgment dismissing the complaint. In support of its motion, 21st Century submitted an order that had been entered on November 28, 2017 in a Supreme Court declaratory judgment action, which granted a motion brought by 21st Century, among other insurers, seeking a default judgment against the present plaintiff, among other providers. The annexed order found specifically that 21st Century and the other insurers were entitled to a default judgment on liability against the providers, but did not declare the rights of the parties. Plaintiff opposed defendant’s motion in the Civil Court. By order entered September 18, 2019, the Civil Court granted defendant’s motion for summary judgment dismissing the complaint based upon a declaratory judgment that was entered in the Supreme Court on February 22, 2018 pursuant to the November 28, 2017 order. In response to the instant appeal by plaintiff, 21st Century submits the declaratory judgment, which declared, among other things, that 21st Century has no duty to pay any no-fault benefits to Noel E. Blackman in any current or future proceeding, because the provider is ineligible to collect no-fault benefits.
A court “may in general take judicial notice of matters of public record” (Headley v New York City Tr. Auth., 100 AD3d 700, 701 [2012]; see Matter of Oak Tree Realty Co., LLC v Board of Assessors, 71 AD3d 1027 [2010]; Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co., 61 [*2]AD3d 13 [2009]). In light of the Supreme Court’s declaratory judgment, of which we take judicial notice, we find no basis to disturb the Civil Court’s order granting defendant’s motion for summary judgment dismissing the complaint under 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]). In view of the foregoing, we reach no other issue.
Accordingly, the order is affirmed.
ALIOTTA, P.J., WESTON and TOUSSAINT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: July 30, 2021
Reported in New York Official Reports at Island Life Chiropractic Pain Care, PLLC v Nationwide Ins. (2021 NY Slip Op 50765(U))
| Island Life Chiropractic Pain Care, PLLC v Nationwide Ins. |
| 2021 NY Slip Op 50765(U) [72 Misc 3d 137(A)] |
| Decided on July 30, 2021 |
| 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 July 30, 2021
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
2019-340 K C
against
Nationwide Ins., Appellant.
Hollander Legal Group, P.C. (Allan S. Hollander of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Odessa Kennedy, J.), entered December 6, 2018. 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 affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath, and plaintiff cross-moved for summary judgment. By order entered December 6, 2018, the Civil Court denied the motion and cross motion but found, pursuant to CPLR 3212 (g), that the claims at issue were mailed by plaintiff and received by defendant. Defendant appeals, as limited by its brief, from so much of the order as denied its motion for summary judgment.
For the reasons stated in Allay Med. Servs., P.C., as Assignee of Bright, Sayquan U v Nationwide Ins. (___ Misc 3d ___, 2021 NY Slip Op ______ [appeal No. 2019-118 K C], decided herewith), the order, insofar as appealed from, is affirmed.
ALIOTTA, P.J., TOUSSAINT and GOLIA, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: July 30, 2021
Reported in New York Official Reports at Allay Med. Servs., P.C. v Nationwide Ins. (2021 NY Slip Op 50764(U))
| Allay Med. Servs., P.C. v Nationwide Ins. |
| 2021 NY Slip Op 50764(U) [72 Misc 3d 137(A)] |
| Decided on July 30, 2021 |
| 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 July 30, 2021
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
2019-118 K C
against
Nationwide Ins., Appellant.
Hollander Legal Group, P.C. (Allan S. Hollander of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Odessa Kennedy, J.), entered December 24, 2018. 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 affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs), and plaintiff cross-moved for summary judgment. By order entered December 24, 2018, the Civil Court denied the motion and cross motion but found, pursuant to CPLR 3212 (g), that the claims at issue were mailed by plaintiff and received by defendant. Defendant appeals, as limited by its brief, from so much of the order as denied its motion for summary judgment.
Contrary to defendant’s contention, defendant’s motion failed to establish that defendant had timely denied plaintiff’s claim after plaintiff failed to appear at both an initial and a follow-up EUO. As defendant did not demonstrate that it is not precluded from raising its proffered defense (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2009]), defendant’s motion for summary judgment dismissing the complaint was properly denied (see Bento Ortho, Inc. v Ameriprise Auto & Home, 64 Misc 3d 136[A], 2019 NY Slip Op 51160[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]). We reach no other issue.
Accordingly, the order, insofar as appealed from, is affirmed.
ALIOTTA, P.J., TOUSSAINT and GOLIA, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: July 30, 2021
Reported in New York Official Reports at Ahava Med. Diagnostic, P.C. v Hertz Co. (2021 NY Slip Op 50772(U))
[*1]| Ahava Med. Diagnostic, P.C. v Hertz Co. |
| 2021 NY Slip Op 50772(U) [72 Misc 3d 138(A)] |
| Decided on July 30, 2021 |
| 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 July 30, 2021
PRESENT: : WAVNY TOUSSAINT, J.P., MICHELLE WESTON, DAVID ELLIOT, JJ
2020-179 K C
against
Hertz Co., Appellant.
Rubin, Fiorella, Friedman & Mercante, LLP (Sarah V. Cohenson of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell and Karina Barska of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Jill R. Epstein, J.), entered November 8, 2019. The order denied defendant’s motion to vacate a judgment of that court entered November 1, 2018 upon defendant’s failure to appear or answer 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, it is undisputed that defendant failed to appear or answer the complaint. The Civil Court granted plaintiff’s motion for a default judgment, and a default judgment was entered on November 1, 2018. Thereafter, defendant moved, insofar as is relevant to this appeal, to vacate the default judgment, and plaintiff opposed the motion. By order entered November 8, 2019, the Civil Court denied defendant’s motion.
A defendant seeking to vacate a default judgment pursuant to CPLR 5015 (a) (1) must demonstrate both a reasonable excuse for the default and the existence of a potentially meritorious defense to the action (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]). While defendant argues on appeal that it demonstrated the existence of a potentially meritorious defense, we need not reach that issue because, as plaintiff argues, the papers submitted by defendant’s claim representative in support of the motion did not provide a sufficiently detailed explanation of the inadvertent office failure that allegedly caused the default (see Auburn Realty, LLC v Surujdyal, 183 AD3d 682 [2020]; Herrera v MTA Bus Co., 100 AD3d 962 [2012]). Indeed, absent from defendant’s papers was an affidavit by the person responsible for the office failure or any explanation as to why such affidavit was not provided (see Pierre J. Renelique Physician, P.C. v Allstate Ins. Co., 64 Misc 3d 98, 100 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]). Consequently, it is unnecessary to determine whether defendant [*2]demonstrated the existence of a potentially meritorious defense to the action (see Wells Fargo Bank, N.A. v Syed, 160 AD3d 914 [2018]; Scott v Ward,130 AD3d 903 [2015]; Vardaros v Zapas, 105 AD3d 1037 [2013]).
Accordingly, the order is affirmed.
TOUSSAINT, J.P., WESTON and ELLIOT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: July 30, 2021FJL Med. Servs. PC v Nationwide Ins. (2021 NY Slip Op 21214)
Reported in New York Official Reports at FJL Med. Servs. PC v Nationwide Ins. (2021 NY Slip Op 21214)
| FJL Med. Servs. PC v Nationwide Ins. |
| 2021 NY Slip Op 21214 [73 Misc 3d 251] |
| July 28, 2021 |
| Kennedy, J. |
| Civil Court of the City of New York, Kings County |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| As corrected through Wednesday, October 13, 2021 |
[*1]
| FJL Medical Services PC, as Assignee of Roland McTaggart, Plaintiff, v Nationwide Insurance, Defendant. |
Civil Court of the City of New York, Kings County, July 28, 2021
APPEARANCES OF COUNSEL
Brian E. Kaufman for defendant.
Richard Rozhik for plaintiff.
{**73 Misc 3d at 252} OPINION OF THE COURT
The decision/order on defendant’s motion for summary judgment and plaintiff’s cross motion for summary judgment is decided as follows:
It is well settled that a proponent for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact (see CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; see also Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 852 [1985]; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]).
A moving defendant seeking summary judgment to dismiss the complaint based upon failure to appear for an examination under oath (hereinafter EUO) must show timely mailing of the EUO scheduling letters and that the assignee, in fact, failed to appear (see 11 NYCRR 65-1.1; Nationwide Affinity Ins. Co. of Am. v George, 183 AD3d 755, 756 [2d Dept 2020]).
Defendant did so here. Defendant established that it scheduled plaintiff’s EUO four times by letters dated, October 26, 2017, January 10, 2018, March 26, 2018, and May 25, 2018, for EUOs noticed for January 8, 2018, March 20, 2018, May 23, 2018, and July 12, 2018, respectively. Defendant also established that plaintiff failed to appear at each of the noticed EUOs.
Moreover, defendant demonstrated that plaintiff repeatedly sent letters to counsel for Nationwide stating that it needed two additional months to appear for the EUO, while requesting [*2]an explanation regarding the basis of the EUO and impermissibly demanding a $3,500 appearance fee per claimant to appear at the noticed examinations under oath. The said letters were sent on December 27, 2017 (in relation to the January 8, 2018 EUO), March 16, 2018 (in relation to the March 20, 2018 EUO), May 9, 2018, and May 21, 2018 (in relation to the May 23, 2018 EUO), and June 28, 2018 (in relation to the July 12, 2018 EUO). Each of the aforementioned letters were sent within days or weeks of the respective scheduled EUOs although each EUO request provided nearly two months’ notice as per plaintiff’s request to accommodate plaintiff’s claim that it had a busy calendar. Despite repeatedly claiming to be unavailable to attend the EUO and successfully obtaining two{**73 Misc 3d at 253} months’ adjournment, plaintiff failed to submit an affidavit of an individual with personal knowledge to establish its unavailability on any of the dates the EUO was noticed for or an affidavit attesting to any date it provided defendant that plaintiff would be available to appear.
The purpose of the No-Fault Law and regulations, Insurance Law § 5102 et seq. and 11 NYCRR part 65, is to ensure prompt payment of medical claims for treatment provided to people injured in automobile accidents regardless of fault. If an EUO is requested as additional verification an insurer must schedule it within a reasonable time frame and as “expeditiously as possible.” (Eagle Surgical Supply, Inc. v Progressive Cas. Ins. Co., 21 Misc 3d 49, 51 [App Term, 2d Dept, 2d & 11th Jud Dists 2008].) Plaintiff frustrated the intent of the no-fault regulation by attempting to delay the claim over a period of nine months by claiming it needed two months’ notice for each noticed EUO, thereafter receiving two months’ notice of the EUOs and then continuing to claim it was unavailable and further, without authority, requiring $3,500 for the appearance.
The record demonstrates that plaintiff failed to appear for EUOs scheduled on four occasions, January 8, 2018, March 20, 2018, May 23, 2018, and July 12, 2018. Moreover, the record demonstrates that although defendant Nationwide attempted to accommodate plaintiff by noticing the EUO four times at plaintiff’s request, plaintiff nonetheless failed to appear for any of the noticed EUOs. The last scheduled EUO was for July 12, 2018, and the claims were timely denied on July 19, 2018.
Both parties were given an opportunity to orally argue this motion, at which time plaintiff raised the issue of a timely denial based on a recent case, Quality Health Supply Corp. v Nationwide Ins. (69 Misc 3d 133[A], 2020 NY Slip Op 51226[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]). It appears that Quality Health stands for the proposition that a denial issued more than 30 days after the second EUO no-show, despite the scheduling of subsequent EUOs, is untimely. In Quality Health, the record before the court failed to establish that there were any objections to the EUO request and/or requests seeking an adjournment or postponement of the EUO.
The court finds that the case herein is distinguishable from Quality Health because the defendant herein demonstrated to the court that plaintiff requested that defendant Nationwide notice the EUO additional times, and that defendant in good faith was attempting to accommodate plaintiff’s request by rescheduling the EUOs.{**73 Misc 3d at 254}
Defendant has submitted sufficient proof to demonstrate that plaintiff failed to appear at four duly scheduled EUOs and therefore, failed to comply with a condition precedent to coverage. The plaintiff failed to provide evidence to rebut defendant’s showing.
Plaintiff’s contention that defendant is unable to establish the January 8, 2018 no-show as the transcript states a time of 11:45 p.m. (as opposed to 11:45 a.m.) lacks merit. The court finds that the EUO was noticed for 11:00 a.m. and that the affidavit of Allan Hollander stated that the scheduled start time of the EUO was 11:00 a.m. This is an obvious error in the transcript. Further, the December 27, 2017 correspondence from The Rybak Firm, PLLC, confirmed that FJL Medical Services PC would “be unavailable to appear for the requested EUO currently scheduled for [*3]January 8, 2018.” The court finds that the error in the transcript is insignificant to raise a triable issue of fact.
In light of the above, defendant’s motion for summary judgment is granted and plaintiff’s complaint is hereby dismissed.
Reported in New York Official Reports at Solution Bridge, Inc. v GEICO Ins. Co. (2021 NY Slip Op 50731(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
GEICO Ins. Co., Appellant.
Law Office of Goldstein, Flecker & Hopkins (Alison M. Chulis of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell and Karina Barska 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 January 24, 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 moved for summary judgment dismissing the complaint on the ground that plaintiff’s action is barred by a declaratory judgment entered in the Supreme Court, Nassau County, or, in the alternative, on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs). Plaintiff cross-moved for summary judgment. By order dated January 24, 2020, the Civil Court denied the motion and cross motion, but found, in effect pursuant to CPLR 3212 (g), that the only issue remaining for trial was defendant’s defense that plaintiff had failed to appear for duly scheduled EUOs. Defendant appeals, as limited by its brief, from so much of the order as denied its motion for summary judgment.
Defendant’s motion for summary judgment dismissing the complaint should have been granted under the doctrine of res judicata (see EBM Med. Health Care, P.C. v Republic W. Ins., 38 Misc 3d 1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]) since, under the circumstances, any judgment in favor of plaintiff in the present action would destroy or impair rights or interests established by the order in the declaratory judgment action (see Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304 [1929]; Healing Art Acupuncture, P.C. v 21st [*2]Century Ins. Co., 59 Misc 3d 139[A], 2018 NY Slip Op 50583[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]).
Even absent the declaratory judgment, defendant’s motion should have been granted on the alternate ground. Defendant established that the initial and follow-up letters scheduling an EUO had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]), and that plaintiff failed to appear on either date (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]), and plaintiff has not rebutted those elements of defendant’s prima facie case. Moreover, the Civil Court held, in effect pursuant to CPLR 3212 (g), that defendant had established the timely mailing of its denial of claim form, which finding has not been challenged by plaintiff.
Accordingly, the order, insofar as appealed from, is reversed, and defendant’s motion for summary judgment dismissing the complaint is granted.
ELLIOT, J.P., TOUSSAINT and GOLIA, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: July 23, 2021
Reported in New York Official Reports at Quality Rehab & P.T., P.C. v Tri State Consumers Ins. Co. (2021 NY Slip Op 50730(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
Tri State Consumers Ins. Co., Respondent.
The Rybak Firm, PLLC (Damin J. Toell and Karina Barska of counsel), for appellant. Law Office of Jason Tenenbaum, P.C. (Shaaker Bhuiyan of counsel), for respondent.
Appeal from a judgment of the Civil Court of the City of New York, Kings County (Reginald A. Boddie, J.), entered December 17, 2018. The judgment, entered pursuant to an order of that court entered March 20, 2013 granting defendant’s motion for summary judgment dismissing the complaint, dismissed the complaint.
ORDERED that the judgment is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the first through fourth causes of action on the ground that verification of the claims comprising those causes of action remained outstanding, and dismissing the fifth and sixth causes of action on the grounds that defendant had timely denied the claims based on a lack of medical necessity, and that the amount sought exceeded the amount permitted by the workers’ compensation fee schedule. Plaintiff opposed the motion. In an order entered March 20, 2013, the Civil Court granted defendant’s motion. Plaintiff appeals from a judgment entered December 17, 2018 dismissing the complaint.
Plaintiff’s argument regarding the adequacy of its verification responses lacks merit. Defendant demonstrated that it had not received all of the requested verification as to the claims underlying the first four causes of action, and, thus, that those causes of action are premature (see New Way Med. Supply Corp. v State Farm Mut. Auto. Ins. Co., 56 Misc 3d 132[A], 2017 NY Slip Op 50925[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]), and plaintiff failed to raise a triable issue of fact with respect thereto.
Contrary to plaintiff’s further contention, plaintiff did not demonstrate the existence of a [*2]triable issue of fact in opposition to defendant’s showing that the services at issue in the claims underlying the fifth and sixth causes of action lacked medical necessity and that the amounts sought exceeded the amounts permitted by the workers’ compensation fee schedule.
Accordingly, the judgment is affirmed.
TOUSSAINT, J.P., WESTON and ELLIOT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: July 23, 2021
Reported in New York Official Reports at Parisien v Tri State Consumers Ins. Co. (2021 NY Slip Op 50728(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
Tri State Consumers Ins. Co., Appellant.
Law Office of Jason Tenenbaum, P.C. (Shaaker Bhuiyan and Roman Kravchenko of Cousnel), for appellant. The Rybak Firm, PLLC (Damin J. Toell and Karina Barska of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Rosemarie Montalbano, J.), entered September 20, 2019. The order, insofar as appealed from, 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 moved for summary judgment dismissing the complaint on the grounds that the services at issue lacked medical necessity and that the amount sought exceeded the amount permitted by the workers’ compensation fee schedule. Plaintiff cross-moved for summary judgment. Insofar as is relevant to this appeal, the Civil Court denied defendant’s motion but held, in effect, pursuant to CPLR 3212 (g), that defendant had established that it had timely denied plaintiff’s claims.
In support of its motion, defendant submitted an affirmed report from the doctor who had performed an independent medical examination (IME) of plaintiff’s assignor before the services at issue had been rendered. The IME report set forth a factual basis and medical rationale for the doctor’s conclusion that there was a lack of medical necessity for further treatment. Defendant’s prima facie showing was not rebutted by plaintiff. In view of the foregoing, and as plaintiff has not challenged the Civil Court’s finding, in effect, that defendant is otherwise entitled to judgment, defendant’s motion for summary judgment dismissing the complaint is granted (see Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op [*2]51502[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]; Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52455[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2007]; A. Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2007]). In light of the foregoing, we reach no other issue.
Accordingly, the order, insofar as appealed from, is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.
ELLIOT, J.P., TOUSSAINT and GOLIA, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: July 23, 2021