Reported in New York Official Reports at Fu-Qi Acupuncture, P.C. v Travelers Ins. Co. (2019 NY Slip Op 50273(U))
| Fu-Qi Acupuncture, P.C. v Travelers Ins. Co. |
| 2019 NY Slip Op 50273(U) [62 Misc 3d 150(A)] |
| Decided on March 8, 2019 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 March 8, 2019
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, BERNICE D. SIEGAL, JJ
2016-301 K C
against
Travelers Insurance Company, Appellant.
Law Offices of Aloy O. Ibuzor (William P. Kleen of counsel), for appellant. Law Office of Melissa Betancourt, P.C. (Melissa Betancourt of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered January 22, 2016. The order denied defendant’s motion to vacate a notice of trial and certificate of readiness.
ORDERED that the order is reversed, with $30 costs, and defendant’s motion to vacate the notice of trial and certificate of readiness is granted.
In this action by a provider to recover assigned first-party no-fault benefits, defendant’s answer, served in January 2015, was accompanied by a notice to take deposition upon oral examination. After plaintiff served a notice of trial and certificate of readiness in February 2015, defendant moved to vacate same, asserting that, contrary to plaintiff’s representation, discovery was not complete. The Civil Court denied defendant’s unopposed motion.
Defendant’s timely motion to vacate the notice of trial (see Uniform Rules for NY City Civ Ct [22 NYCRR] § 208.17 [c]) should have been granted since it was based upon a certificate of readiness which contained the erroneous statement that discovery was complete or that it had been waived (see Savino v Lewittes, 160 AD2d 176 [1990]; Queens Chiropractic Mgt., P.C. v Country Wide Ins. Co., 23 Misc 3d 142[A], 2009 NY Slip Op 51073[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]). As it is undisputed that plaintiff never appeared for a deposition in this action despite being served with a notice to take deposition upon oral examination, the notice of trial and certificate of readiness should be vacated (see Queens Chiropractic Mgt., P.C., 23 Misc 3d 142[A], 2009 NY Slip Op 51073[U]).
Accordingly, the order is reversed and defendant’s motion to vacate the notice of trial and certificate of readiness is granted.
PESCE, P.J., ALIOTTA and SIEGAL, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: March 08, 2019
Reported in New York Official Reports at Fu-Qi Acupuncture, P.C. v Travelers Ins. Co. (2019 NY Slip Op 50272(U))
| Fu-Qi Acupuncture, P.C. v Travelers Ins. Co. |
| 2019 NY Slip Op 50272(U) [62 Misc 3d 149(A)] |
| Decided on March 8, 2019 |
| 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 March 8, 2019
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, BERNICE D. SIEGAL, JJ
2016-300 K C
against
Travelers Insurance Company, Appellant.
Law Office of Aloy O. Ibuzor (William P. Kleen of counsel), for appellant. Law Offices of Melissa Betancourt, P.C. (Melissa Betancourt of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered January 22, 2016. The order denied defendant’s motion to vacate a notice of trial and certificate of readiness.
ORDERED that the order is reversed, with $30 costs, and defendant’s motion to vacate the notice of trial and certificate of readiness is granted.
In this action by a provider to recover assigned first-party no-fault benefits, defendant’s answer, served in January 2015, was accompanied by a notice to take deposition upon oral examination. After plaintiff served a notice of trial and certificate of readiness in February 2015, defendant moved to vacate same, asserting that, contrary to plaintiff’s representation, discovery was not complete. The Civil Court denied defendant’s unopposed motion.
For the reasons stated in Fu-Qi Acupuncture, P.C., as Assignee of Gomez, Osiris v Travelers Ins. Co. (__ Misc 3d ___, 2019 NY Slip Op _____ [appeal No. 2016-301 K C], decided herewith), the order is reversed and defendant’s motion to vacate the notice of trial and certificate of readiness is granted.
PESCE, P.J., ALIOTTA and SIEGAL, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: March 08, 2019
Reported in New York Official Reports at Gordon v Geico Ins. Co. (2019 NY Slip Op 29072)
| Gordon v Geico Ins. Co. |
| 2019 NY Slip Op 29072 [63 Misc 3d 621] |
| March 8, 2019 |
| Ramseur, J. |
| Civil Court of the City of New York, New York County |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| As corrected through Wednesday, May 15, 2019 |
[*1]
| Johnnie Gordon, Plaintiff, v Geico Insurance Co., Defendant. |
Civil Court of the City of New York, New York County, March 8, 2019
APPEARANCES OF COUNSEL
Johnnie Gordon, plaintiff pro se.
{**63 Misc 3d at 621} OPINION OF THE COURT
After an inquest held on December 1, 2017, upon defendant Geico Insurance Company’s failure to appear for a conference,{**63 Misc 3d at 622} the court dismissed plaintiff Johnnie Gordon’s complaint for failure to meet the burden of proof (22 NYCRR 208.14 [b] [1] [“At any scheduled call of a calendar or at a pretrial conference . . . (i)f the plaintiff appears but the defendant does not, the judge may grant judgment by default or order an inquest”]; 22 NYCRR 208.32).[FN*] Plaintiff then filed a notice of appeal and sought settlement of the transcript. Because the proposed changes did not accurately transcribe what occurred at the inquest, the court declined to sign the Clerk’s return on appeal (see CIV-GP-44 [2000]).
Plaintiff has now submitted a second errata sheet dated January 10, 2019, again proposing changes to the transcript which would not reflect statements made at inquest and, in some instances, alter the meaning of what was said on the record. For the reasons below, the court memorializes its first denial and denies the second set of proposed amendments.
CPLR 5525 (c) (1) provides that
“[w]ithin fifteen days after receiving the transcript from the court reporter . . . , the appellant shall make any proposed amendments and serve them and a copy of the transcript upon the respondent. Within fifteen days after such service the respondent shall make any proposed amendments or objections to the proposed amendments of the appellant and serve them upon the appellant. At any time thereafter and on at least four days’ notice to the adverse party, the transcript and the proposed amendments and objections thereto shall be submitted for settlement to the judge or referee before whom the proceedings were had if the parties cannot agree on the amendments to the transcript. The original of the transcript shall be corrected by the appellant in accordance with the agreement of the parties or the direction of the court and its correctness shall be certified to thereon by the parties or the judge or referee before whom the proceedings were had. When he [*2]serves his brief upon the respondent the appellant shall also serve a conformed copy of the transcript or deposit it in the office of the clerk of the court of original instance who shall make it available to respondent.”
CPLR 5525 (c) (3) provides that an appellant{**63 Misc 3d at 623}
“shall serve on respondent together with a copy of the transcript and the proposed amendments, a notice of settlement containing a specific reference to subdivision (c) of this rule, and stating that if respondent fails to propose amendments or objections within [15 days of service], the provisions of [CPLR 5525 (c) (2)] shall apply.”
CPLR 5525 (c) (2), in turn, provides that
“[i]f the appellant has timely proposed amendments and served them with a copy of the transcript on respondent, and no amendments or objections are proposed by the respondent within the time limited by paragraph 1, the transcript, certified as correct by the court reporter, together with appellant’s proposed amendments, shall be deemed correct without the necessity of a stipulation by the parties certifying to its correctness or the settlement of the transcript by the judge or referee. The appellant shall affix to such transcript an affirmation, certifying to his compliance with the time limitation, the service of the notice provided by paragraph 3 and the respondent’s failure to propose amendments or objections within the time prescribed.”
With respect to both the first and second errata sheets, the court is unable to discern the reason for defendant having failed to object. It may be because defendant did not receive a copy of the transcript; that is, plaintiff sent a copy of the transcript to defendant; that is, plaintiff’s affiant Robert Wilson, in affidavits dated December 14, 2018, and January 22, 2019, only testifies to actually serving the transcript on the earlier date. Moreover, both list defense counsel’s service address as 2 Huntington Quadrangle, Suite 2N01, Melville, New York 11747, not the address of record, 170 Froehlich Farm Boulevard, Woodbury, New York 11797. Finally, it is unclear what defendant would be able to object to—indeed, the very reason that the inquest went forward was defendant’s absence.
In any event, however, even if plaintiff complied with all of CPLR 5525 (c)’s technical requirements, the court would nevertheless be compelled to deny the proposed amendments. CPLR 5525 (c) invokes, at multiple junctures, the “correctness” of the record—in the context of a stenographic record, the accuracy for the purposes of appellate review (see e.g. Ayton v Bean, 92 AD2d 577, 578 [2d Dept 1983] [“by permitting the affidavit of service and the acknowledgement of service to be included in{**63 Misc 3d at 624} the record, Special Term was not correcting or reforming an old record in order to indicate the true facts appearing before it at the time of its original determination but it was, in fact, making an entirely new record. To allow this type of amendment at this stage of the proceeding ‘would be setting a precedent which would lead to great embarrassment in our practice and injustice to parties’ ”]; Yaretsky v Blum, 629 F2d 817, 822-823 [2d Cir 1980] [“The chief purpose of the state statutory requirement that a complete electronic or stenographic record of the hearing be kept appears to be to allow judicial review in a proceeding under (CPLR article 78)”], revd on other grounds 457 US 991 [1982]; cf. Van Valkenburgh v Bourne, 26 AD2d 727, 727 [3d Dept 1966] [permitting addition of statement made in unrecorded summation to the effect that plaintiff had “flunked his driver’s test” where defendant’s counsel conceded that the summation language was “similar in import to the quoted words”]). The very purpose of appellate review is the correction of any errors based on the record; to that end, CPLR 5525 must ensure that the appellate court is reviewing the record as it actually occurred, not as a party believes it should have.
When plaintiff first proposed amendments on or about December 17, 2018, plaintiff’s “Notice of Settlement of Transcript,” apparently sent to respondent/appellee Geico, was accompanied by a five-page errata sheet listing numerous proposed amendments. Numerous amendments materially changed not only plaintiff’s testimony, but the court’s statements and conclusions on the record. For example:
[*3]“Transcript (2:1): You have an order to show cause that was granted on default. You wanted to amend the complaint to include some medical service and alleged days out of work. So, this is an inquest.
“(Plaintiff) Okay.
“(Court) Apparently, this case was on for a conference and now I’m told it’s an inquest. During an inquest you can present your evidence as you would like the court to hear it.
“Proposed change: A Conference is on the calendar. The Defendant is a No show. The court will proceed instead on an Inquest. Later a default judgment is granted in favor of Plaintiff . . .
“Transcript (5:17-23): (Plaintiff) This is based on—initially, I was paid for during the time I was{**63 Misc 3d at 625} injured for medical treatment up until May 4th of 2013. This is being submitted because I continued treatment, it was necessary to have further treatment up until December 29th, I mean, December 29th of 2015.
“Proposed change: (Gordon) I was not paid for Medical Treatments during the time I was injured in an auto accident. My medical treatments were not paid for at all by my No-Fault auto insurer, Geico (not paid from date of accident to the date of last treatments which is 12/01/2012 through 12/29/2015).”
The second errata sheet proposed similar amendments (proposed change underlined):
“Transcript (6:24): (Plaintiff) This document [from the social security administration] shows that they’re demanding income to be reimbursed from Geico for the treatment periods that I was—it does establish the times that I was treated and had loss of income.
“Proposed change: (Plaintiff) This document [from the social security administration] shows that they’re demanding medical costs to be reimbursed from Geico for the treatment periods that I was—it does establish the times that I was treated and had loss of income . . .
“Transcript (6:24): (Court) You can appeal my decision once you get a decision from me based on this inquest.
“Proposed change: (Court) You can appeal my decision once you get a decision from me based on this conference.”
In the case of both the first and second errata sheets, the other proposed amendments are similar. Even if they do not, as in the examples above, profoundly alter the meaning of the statements made on the record, the proposed changes nevertheless fail to accurately reflect what was said. Accordingly it is hereby ordered that amendment of the transcript of the December 1, 2017 court proceedings (Vanessa M. Castillo, Court Reporter) pursuant to plaintiff’s November 24, 2018, and January 10, 2019, errata sheets is hereby denied; and it is further ordered that said transcript shall be settled as currently transcribed.
Footnotes
Footnote *:The court also denied several subsequent orders to show cause to reargue and/or renew.
Reported in New York Official Reports at Sheepshead Bay Oral Surgery, PLLC v Unitrin Direct Ins. Co. (2019 NY Slip Op 51058(U))
| Sheepshead Bay Oral Surgery, PLLC v Unitrin Direct Ins. Co. |
| 2019 NY Slip Op 51058(U) [64 Misc 3d 132(A)] |
| Decided on March 1, 2019 |
| 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 March 1, 2019
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, BERNICE D. SIEGAL, JJ
2017-168 K C
against
Unitrin Direct Ins. Co., Appellant.
Rubin, Fiorella & Friedman, LLP (Harlan R. Schreiber of counsel), for appellant. Kopelevich & Feldsherova, P.C. (David Landfair of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Devin P. Cohen, J.), entered August 24, 2016. The order denied defendant’s motion to dismiss the complaint.
ORDERED that the order is reversed, with $30 costs, and defendant’s motion to dismiss the complaint is granted.
In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court which denied defendant’s motion to dismiss the complaint.
A first-party no-fault cause of action accrues 30 days after the insurer’s receipt of the claim (see Insurance Law § 5106 [a]; 11 NYCRR 65-3.8; DJS Med. Supplies, Inc. v Clarendon Natl. Ins. Co., 32 Misc 3d 129[A], 2011 NY Slip Op 51304[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]; Kings Highway Diagnostic Imaging, P.C. v MVAIC, 19 Misc 3d 69 [App Term, 2d Dept, 2d & 11th Jud Dists 2008]; Boulevard Multispec Med., P.C. v MVAIC, 19 Misc 3d 138[A], 2008 NY Slip Op 50872[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2008]). The six-year statute of limitations for contract actions is applicable to this cause of action (see CPLR 213 [2]; Mandarino v Travelers Prop. Cas. Ins. Co., 37 AD3d 775 [2007]). As defendant has established that it received all of the claim forms at issue no later than June 6, 2008, plaintiff’s cause of action accrued on July 6, 2008, and this action, which was commenced over six years later, on February 10, 2015, is untimely.
Accordingly, the order is reversed and defendant’s motion to dismiss the complaint is granted.
PESCE, P.J., ALIOTTA and SIEGAL, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: March 01, 2019
Reported in New York Official Reports at Neptune Med. Care, P.C. v Praetorian Ins. Co. (2019 NY Slip Op 51052(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
Praetorian Insurance Company, Appellant.
Law Office of Moira Doherty, P.C. (Janice Rosen of counsel), for appellant. Law Offices of Damin J. Toell, P.C. (Damin J. Toell of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered January 29, 2016. The order, insofar as appealed from and as limited by the brief, denied defendant’s cross 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, plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint on the ground that plaintiff’s assignors had failed to appear for duly scheduled examinations under oath (EUOs) and independent medical examinations (IMEs). The Civil Court, by order dated January 29, 2016, denied both motions finding, pursuant to CPLR 3212 (g), that plaintiff had established its prima facie case, that defendant had established that it had timely denied the claims on the grounds that plaintiff’s assignors had failed to appear for EUOs and IMEs, and that the only triable issues were whether the EUO and IME scheduling letters had been timely and properly mailed.
Contrary to defendant’s contention, defendant failed to establish that the initial and follow-up letters scheduling the EUOs and IMEs had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). As a result, defendant failed to demonstrate that the EUOs and IMEs had been properly scheduled and, thus, that plaintiff’s assignors had failed to appear at duly scheduled EUOs and 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.
Accordingly, the order, insofar as appealed from, is affirmed.
PESCE, P.J., ALIOTTA and SIEGAL, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: March 01, 2019
Reported in New York Official Reports at Mag Med., P.C. v Kemper Ins. Co. (2019 NY Slip Op 51051(U))
| Mag Med., P.C. v Kemper Ins. Co. |
| 2019 NY Slip Op 51051(U) [64 Misc 3d 132(A)] |
| Decided on March 1, 2019 |
| 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 March 1, 2019
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, BERNICE D. SIEGAL, JJ
2016-2627 K C
against
Kemper Insurance Company, Appellant.
Gullo & Associates, LLP (Cristina Carollo of counsel), for appellant. Law Office of Florence Zabokritsky, for respondent (no brief filed).
Appeal from an order of the Civil Court of the City of New York, Kings County (Theresa M. Ciccotto, J.), entered August 1, 2016. The order denied defendant’s motion for summary judgment dismissing the complaint.
ORDERED that the order is reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is granted.
In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court which denied defendant’s motion for summary judgment dismissing the complaint.
The evidence submitted by defendant in support of its motion established that defendant had timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) the denial of claim forms at issue, which denied the claims on the ground of lack of medical necessity. Defendant also submitted an affirmed peer review report, which set forth a factual basis and medical rationale for the doctor’s determination that there was a lack of medical necessity for the services at issue. Plaintiff did not submit any medical evidence in opposition to rebut defendant’s prima facie showing. Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is granted (see Lynbrook Med. of NY, P.C. v Praetorian Ins. Co., 48 Misc 3d 139[A], 2015 NY Slip Op 51226[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).
PESCE, P.J., ALIOTTA and SIEGAL, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: March 01, 2019
Reported in New York Official Reports at Oleg’s Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2019 NY Slip Op 51049(U))
| Oleg’s Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. |
| 2019 NY Slip Op 51049(U) [64 Misc 3d 131(A)] |
| Decided on March 1, 2019 |
| 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 March 1, 2019
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, BERNICE D. SIEGAL, JJ
2016-2132 K C
against
State Farm Mutual Automobile Ins. Co., Appellant.
Rivkin Radler, LLP (Stuart M. Bodoff and Cheryl F. Korman of counsel), for appellant. Gary Tsirelman, P.C. (Douglas Mace of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered June 10, 2016. 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 ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs). By order entered June 10, 2016, the Civil Court denied the motion, but found, in effect pursuant to CPLR 3212 (g), that defendant had established the timely and proper mailing of the EUO scheduling letters and denial of claim forms, as well as plaintiff’s failure to appear for the EUOs. The Civil Court further found that the only remaining issues for trial were plaintiff’s prima facie case and “an issue of fact regarding the discrepancy between the person stated to be the contact for defense counsel in the EUO request letters and the person signing the affirmation regarding plaintiff’s failure to appear.” Defendant appeals, contending that it was entitled to summary judgment dismissing the complaint.
For the reasons stated in Oleg’s Acupuncture P.C., as Assignee of Kevin Adams v State Farm Mut. Auto. Ins. Co. (___ Misc 3d ___, 2019 NY Slip Op _____ [appeal No. 2016-2048 K C], decided herewith), the order, insofar as appealed from, is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.
PESCE, P.J., ALIOTTA and SIEGAL, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: March 01, 2019
Reported in New York Official Reports at Oleg’s Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2019 NY Slip Op 51048(U))
| Oleg’s Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. |
| 2019 NY Slip Op 51048(U) [64 Misc 3d 131(A)] |
| Decided on March 1, 2019 |
| 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 March 1, 2019
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, BERNICE D. SIEGAL, JJ
2016-2131 K C
against
State Farm Mutual Automobile Ins. Co., Appellant.
Rivkin Radler, LLP (Stuart M. Bodoff and Cheryl F. Korman of counsel), for appellant. Gary Tsirelman, P.C. (Douglas Mace of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered June 10, 2016. 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 ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs). By order entered June 10, 2016, the Civil Court denied the motion, but found, in effect pursuant to CPLR 3212 (g), that defendant had established the timely and proper mailing of the EUO scheduling letters and denial of claim forms, as well as plaintiff’s failure to appear for the EUOs. The Civil Court further found that the only remaining issues for trial were plaintiff’s prima facie case and “an issue of fact regarding the discrepancy between the person stated to be the contact for defense counsel in the EUO request letters and the person signing the affirmation regarding plaintiff’s failure to appear.” Defendant appeals, contending that it was entitled to summary judgment dismissing the complaint.
For the reasons stated in Oleg’s Acupuncture P.C., as Assignee of Kevin Adams v State Farm Mut. Auto. Ins. Co. (___ Misc 3d ___, 2019 NY Slip Op _____ [appeal No. 2016-2048 K C], decided herewith), the order, insofar as appealed from, is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.
PESCE, P.J., ALIOTTA and SIEGAL, JJ., concur.
ENTER:
Paul Kenny
Chief ClerkDecision Date: March 01, 2019
Reported in New York Official Reports at Oleg’s Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2019 NY Slip Op 51047(U))
| Oleg’s Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. |
| 2019 NY Slip Op 51047(U) [64 Misc 3d 131(A)] |
| Decided on March 1, 2019 |
| 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 March 1, 2019
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, BERNICE D. SIEGAL, JJ
2016-2130 K C
against
State Farm Mutual Automobile Ins. Co., Appellant.
Rivkin Radler, LLP (Stuart M. Bodoff and Cheryl F. Korman of counsel), for appellant. Gary Tsirelman, P.C. (Douglas Mace of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered June 10, 2016. 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 ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs). By order entered June 10, 2016, the Civil Court denied the motion, but found, in effect pursuant to CPLR 3212 (g), that defendant had established the timely and proper mailing of the EUO scheduling letters and denial of claim forms, as well as plaintiff’s failure to appear for the EUOs. The Civil Court further found that the only remaining issues for trial were plaintiff’s prima facie case and “an issue of fact regarding the discrepancy between the person stated to be the contact for defense counsel and the person signing the affirmation regarding plaintiff’s failure to appear.” Defendant appeals, contending that it was entitled to summary judgment dismissing the complaint.
For the reasons stated in Oleg’s Acupuncture P.C., as Assignee of Kevin Adams v State Farm Mut. Auto. Ins. Co. (___ Misc 3d ___, 2019 NY Slip Op _____ [appeal No. 2016-2048 K C], decided herewith), the order, insofar as appealed from, is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.
PESCE, P.J., ALIOTTA and SIEGAL, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: March 01, 2019
Reported in New York Official Reports at Oleg’s Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2019 NY Slip Op 51046(U))
| Oleg’s Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. |
| 2019 NY Slip Op 51046(U) [64 Misc 3d 131(A)] |
| Decided on March 1, 2019 |
| 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 March 1, 2019
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, BERNICE D. SIEGAL, JJ
2016-2073 K C
against
State Farm Mutual Automobile Ins. Co., Appellant.
Rivkin Radler, LLP (Stuart M. Bodoff and Cheryl F. Korman of counsel), for appellant. Gary Tsirelman, P.C. (Douglas Mace of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered June 9, 2016. 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 ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs). By order entered June 9, 2016, the Civil Court denied the motion, but found, in effect pursuant to CPLR 3212 (g), that defendant had established the timely and proper mailing of the EUO scheduling letters and denial of claim forms, as well as plaintiff’s failure to appear for the EUOs. The Civil Court further found that the only remaining issues for trial were plaintiff’s prima facie case and “an issue of fact regarding the discrepancy between the person stated to be the contact for defense counsel in the EUO request letters and the person signing the affidavit regarding plaintiff’s failure to appear.” Defendant appeals, contending that it was entitled to summary judgment dismissing the complaint.
For the reasons stated in Oleg’s Acupuncture P.C. as Assignee of Kevin Adams v State Farm Mut. Auto. Ins. Co. (___ Misc 3d ___, 2019 NY Slip Op _____ [appeal No. 2016-2048 K C], decided herewith), the order, insofar as appealed from, is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.
PESCE, P.J., ALIOTTA and SIEGAL, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: March 01, 2019