October 27, 2017

Comprehensive Care Physical Therapy, P.C. v State-Wide Ins. Co. (2017 NY Slip Op 51448(U))

Headnote

The court considered the plaintiff's motion for summary judgment and the defendant's cross motion for summary judgment to dismiss the complaint in an action to recover first-party no-fault benefits. The main issue decided was whether the plaintiff's failure to appear for scheduled examinations under oath (EUOs) justified the dismissal of certain causes of action. The court held that the defendant's affirmation was sufficient to establish the plaintiff's failure to appear for the EUOs, and therefore granted the defendant's cross motion for summary judgment and denied the plaintiff's motion for summary judgment on the second, third, fourth, eighth, and ninth causes of action. The court did not consider the plaintiff's argument regarding the first cause of action as it remained pending and undecided. The decision of the Civil Court was affirmed.

Reported in New York Official Reports at Comprehensive Care Physical Therapy, P.C. v State-Wide Ins. Co. (2017 NY Slip Op 51448(U))

Comprehensive Care Physical Therapy, P.C. v State-Wide Ins. Co. (2017 NY Slip Op 51448(U)) [*1]

Comprehensive Care Physical Therapy, P.C. v State-Wide Ins. Co.

2017 NY Slip Op 51448(U) [57 Misc 3d 144(A)]

Decided on October 27, 2017

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This opinion is uncorrected and will not be published in the printed Official Reports.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 27, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2014-1574 Q C

Comprehensive Care Physical Therapy, P.C., as Assignee of Paul Smith, Appellant,
against
State-Wide Ins. Co., Respondent.

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Bruno, Gerbino & Soriano, LLP (Mitchell L. Kaufman, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered June 13, 2014. The order, insofar as appealed from and as limited by the brief, denied the branches of plaintiff’s motion seeking summary judgment on the second, third, fourth, eighth and ninth causes of action and granted the branches of defendant’s cross motion seeking summary judgment dismissing those causes of action.

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 dismissing the complaint on various grounds. Insofar as is relevant to this appeal, by order entered June 13, 2014, the Civil Court denied the branches of plaintiff’s motion seeking summary judgment on the second, third, fourth, eighth and ninth causes of action, and granted the branches of defendant’s cross motion seeking summary judgment dismissing those causes of action on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs). Contrary to plaintiff’s sole argument with respect to those claims, the affirmation submitted by defendant was sufficient to establish plaintiff’s failure to appear for the EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).

Plaintiff’s contention as to the branch of its motion seeking summary judgment on the first cause of action is not properly before this court, as that branch of its motion remains pending and undecided (see Andreas v Catskill Mtn. Lodging, LLC, 60 AD3d 604 [2009]).

Accordingly, the order, insofar as appealed from, is affirmed.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: October 27, 2017