June 3, 2022

EA Chiropractic Diagnostics, P.C. v GEICO Ins. (2022 NY Slip Op 50557(U))

Headnote

The main issue in this case was whether the defendant, GEICO Insurance, had timely denied the claims after the plaintiff, EA Chiropractic Diagnostics, P.C., had failed to appear for scheduled examinations under oath (EUOs). The court held that GEICO Insurance's motion failed to establish that it had timely denied the claims at issue after the plaintiff failed to appear for the EUOs. The court also ruled that as the defendant did not demonstrate that it was not precluded from raising its proffered defense, the branches of the defendant's motion seeking summary judgment dismissing the claims for services rendered to certain individuals were properly denied. Therefore, the appellate term affirmed the lower court's decision.

Reported in New York Official Reports at EA Chiropractic Diagnostics, P.C. v GEICO Ins. (2022 NY Slip Op 50557(U))

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

EA Chiropractic Diagnostics, P.C., as Assignee of Elizabeth Santiago, Tarsha Cambridge, Shirley Lopez, Jose A. Santelises, Mutiu Adelekan and Semen Benderskiy, Respondent,
against
GEICO Insurance, Appellant.

Rivkin Radler, LLP (Stuart M. Bodoff and Cheryl F. Korman 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 (Odessa Kennedy, J.), entered June 20, 2019. The order, insofar as appealed from and as limited by the brief, denied the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for services rendered to Elizabeth Santiago, Tarsha Cambridge and Semen Benderskiy.

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, defendant appeals from so much of an order of the Civil Court as denied the branches of defendant’s motion which had sought summary judgment dismissing so much of the complaint as sought to recover upon claims for services rendered to Elizabeth Santiago, Tarsha Cambridge, and Semen Benderskiy on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs).

Contrary to defendant’s contention, defendant’s motion failed to establish that defendant had timely denied the claims at issue after plaintiff failed to appear at both an initial and a follow-up EUO (see Island Life Chiropractic Pain Care, PLLC v 21st Century Ins. Co., 74 Misc 3d 17 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]; Allay Med. Servs., P.C. v Nationwide Ins., 72 Misc 3d 137[A], 2021 NY Slip Op 50764[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]). As defendant did not demonstrate that it is not precluded from raising its proffered defense (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2009]), the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for services rendered to Elizabeth Santiago, Tarsha [*2]Cambridge, and Semen Benderskiy were properly denied. We reach no other issue.

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

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: June 3, 2022