October 11, 2019

Acupuncture Approach, P.C. v Global Liberty Ins. Co. of NY (2019 NY Slip Op 51631(U))

Headnote

The main issue in this case was whether the letters scheduling the plaintiff's assignor's examinations under oath (EUOs) were timely and properly mailed. The only witness at trial was an employee of the defendant who testified as to the defendant's policies and procedures regarding mailing EUO scheduling letters. The defendant established that the initial and follow-up letters scheduling an EUO had been timely and properly mailed. As a result, the judgment of the Civil Court awarding the plaintiff the principal sum of $1,342.08 was reversed, and the matter was remitted to the Civil Court for the entry of a judgment in favor of the defendant dismissing the complaint. The court held in favor of the defendant, concluding that the letters scheduling the EUOs had been timely and properly mailed, and the plaintiff's claim for first-party no-fault benefits was dismissed.

Reported in New York Official Reports at Acupuncture Approach, P.C. v Global Liberty Ins. Co. of NY (2019 NY Slip Op 51631(U))

Acupuncture Approach, P.C. v Global Liberty Ins. Co. of NY (2019 NY Slip Op 51631(U)) [*1]

Acupuncture Approach, P.C. v Global Liberty Ins. Co. of NY

2019 NY Slip Op 51631(U) [65 Misc 3d 135(A)]

Decided on October 11, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 October 11, 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
2018-1600 K C

Acupuncture Approach, P.C., as Assignee of Darrell Johnson, Respondent,
against
Global Liberty Ins. Co. of NY, Appellant.

Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum of counsel), for appellant. Gary Tsirelman, P.C. (Stefan Belinfanti of counsel), for respondent.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Michael Gerstein, J.), entered August 15, 2017. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $1,342.08.

ORDERED that the judgment is reversed, with $30 costs, and the matter is remitted to the Civil Court for the entry of a judgment in favor of defendant dismissing the complaint.

At the commencement of a nonjury trial in this action by a provider to recover assigned first-party no-fault benefits, the parties stipulated that the sole issue was whether the letters scheduling plaintiff’s assignor’s examinations under oath (EUOs) were timely and properly mailed. The only witness at trial was an employee of defendant who testified as to defendant’s policies and procedures regarding mailing EUO scheduling letters.

Contrary to the finding of the Civil Court, defendant established that the initial and follow-up letters scheduling an EUO had been timely and properly mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]).

Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for the entry of a judgment in favor of defendant dismissing the complaint.

PESCE, P.J., ALIOTTA and SIEGAL, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: October 11, 2019