Dr. Orenbakh Psychologist, P.C. v Nationwide Affinity Ins. Co. of Am. (2022 NY Slip Op 50566(U))

Hollander Legal Group, P.C. (Alan S. Hollander, 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 (Odessa Kennedy, J.), entered August 20, 2019. The order denied defendant’s motion for summary judgment dismissing the complaint and, upon a search of the record, awarded plaintiff summary judgment upon the claim which defendant received on February 2, 2016.

ORDERED that the order is modified by providing that the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims which defendant received on February 8, 2016 through March 10, 2016 are granted; as so modified, the order is affirmed, without 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). By order entered August 20, 2019, the Civil Court found that there were issues of fact with respect to the mailing of the EUO scheduling letters and whether plaintiff failed to appear. The court held that defendant’s denial of the claim it received on February 2, 2016 was untimely and, upon a search of the record, awarded plaintiff summary judgment upon that claim.

Upon a review of the record, we find that defendant sufficiently established that the EUO scheduling letters had been mailed in accordance with defendant’s standard office practices and procedures (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; JCC Med., P.C. v Lancer Ins. Co., 71 Misc 3d 140[A], 2021 NY Slip Op 50485[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]; Parisien v Ameriprise Ins., 68 Misc 3d 131[A], 2020 NY Slip Op 50990[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]), and the affirmations from the attorney who was prepared to conduct the EUOs as well as the [*2]certified transcripts of the EUOs demonstrated that plaintiff had failed to appear for either of the scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). In addition, the record further shows that defendant timely denied the claims which defendant received on February 8, 2016 through March 10, 2016 on the ground that plaintiff had failed to appear for the scheduled EUOs (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123). As plaintiff failed to raise a triable issue of fact in opposition to this showing, the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon those claims should have been granted.

With respect to the remaining claim, defendant admitted that it received the claim form on February 2, 2016 and that the first EUO scheduling letter was not mailed until March 4, 2016, more than 30 days after receipt of that claim. Thus, defendant did not demonstrate that it is not precluded from raising its proffered defense as to this claim, as the EUO request was a nullity as to that claim (see Neptune Med. Care, P.C. v Ameriprise Auto & Home Ins., 48 Misc 3d 139[A], 2015 NY Slip Op 51220[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Consequently, the branch of defendant’s motion seeking summary judgment upon that claim was properly denied. Defendant raises no other issue with respect to so much of the order as, upon a search of the record, awarded summary judgment to plaintiff upon this claim. Thus, we leave that part of the order undisturbed.

Accordingly, the order is modified by providing that the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims which defendant received on February 8, 2016 through March 10, 2016 are granted.

ALIOTTA, P.J., TOUSSAINT and GOLIA, JJ., concur.