Crystal Acupuncture, P.C. v Travelers Ins. (2019 NY Slip Op 52055(U))

Law Office of Aloy O. Ibuzor (Tricia Prettypaul of counsel), for appellant. Zara Javakov, P.C. (Zara Javakov 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 April 17, 2018, deemed from a judgment of that court entered June 5, 2018 (see CPLR 5501 [c]). The judgment, entered pursuant to the April 17, 2018 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment dismissing the complaint, awarded plaintiff the principal sum of $1,977.73.

ORDERED that the judgment is reversed, with $30 costs, the order entered April 17, 2018 is vacated, 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 appeals from an order of the Civil Court entered April 17, 2018 granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment dismissing the complaint. A judgment was subsequently entered on June 5, 2018, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

The proof submitted by defendant in support of its cross motion was sufficient to give rise to a presumption that the verification requests, examination under oath (EUO) scheduling letters, and the denial of claim forms had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]).

With respect to the branches of defendant’s cross motion which sought summary judgment dismissing so much of the complaint as sought to recover upon the claims in the amounts of $281.98, $140.99, $422.97, and $140.99, which claims defendant had denied on the [*2]ground that plaintiff had failed to provide requested verification within 120 days of the initial verification requests (see 11 NYCRR 65-3.5 [o]), defendant demonstrated, prima facie, that it had not received all of the requested verification. Plaintiff failed to raise a triable issue of fact to rebut defendant’s showing.

With respect to the branches of defendant’s cross motion seeking summary judgment dismissing the unpaid portion of claims which had sought the sums of $1,452.90 and $1,281.91, which defendant had denied on the ground that the amount sought exceeded the amount permitted by the workers’ compensation fee schedule, defendant’s proof was sufficient to establish that defendant had properly paid those claims pursuant to the workers’ compensation fee schedule. In opposition, plaintiff’s affidavit failed to raise a triable issue of fact with respect to those branches of defendant’s cross motion.

With respect to the branches of defendant’s cross motion seeking summary judgment dismissing plaintiff’s remaining claims, which defendant had denied on the ground that plaintiff’s assignor had failed to appear for duly scheduled EUOs, defendant established that plaintiff had failed to appear on either date (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Plaintiff failed to raise an issue of fact in response.

Accordingly, the judgment is reversed, the order entered April 17, 2018 is vacated, 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 SIEGAL, JJ., concur.