Englinton Med., P.C. v Ameriprise Ins. Co. (2021 NY Slip Op 50715(U))

Bruno, Gerbino, Soriano & Aitken, LLP (Susan B. Eisner of counsel), for appellant. Law Office of Gabriel & Moroff, LLC, for respondent (no brief filed).

Appeal from an order of the District Court of Suffolk County, Third District (C. Stephen Hackeling, J.), dated December 16, 2019. The order, insofar as appealed from, denied branches of defendant’s motion seeking summary judgment dismissing certain claims and granted branches of plaintiff’s cross motion seeking summary judgment on certain claims.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, defendant’s motion for summary judgment dismissing the complaint is granted in its entirety and plaintiff’s cross motion for summary judgment is denied in its entirety.

In this action by a provider to recover assigned first-party no-fault benefits, the summons and complaint seek $7,570.30 for unspecified claims. Defendant moved for summary judgment dismissing the complaint, setting forth a chart listing 16 numbered bills it had received and denied, listing for each bill the date the services were rendered and the amount charged. The total sum of the listed bills was $4,318.49, $3,251.81 less than the amount sought in the complaint.

Defendant alleged that it had denied all of the bills based upon plaintiff’s failure to appear for duly scheduled examinations under oath (EUOs), and that it had denied bills 14 to 16 on the additional ground of lack of medical necessity. Defendant also stated that it had paid a claim of $3,253.92 for services rendered on September 1, 2016 in a separate arbitration, and attached that [*2]arbitration award and proof of its payment.^[FN1] Based on that arbitration award and payment, defendant argued that the $3,253.92 claim should not be recoverable in this action.

Plaintiff cross-moved for summary judgment. Plaintiff did not annex any bills or set forth any particular dates of service or amounts of claims. Instead, plaintiff referred to and annexed defendant’s chart of the 16 numbered bills. In an affirmation in support of its cross motion and in opposition to defendant’s motion, plaintiff’s attorney did not mention, let alone dispute, defendant’s assertions that the $3,253.92 claim was part of this action and that it had been paid.

By order dated December 16, 2019, the District Court denied the branches of defendant’s motion as to “bills 1-8 and 10-13” on defendant’s chart and granted plaintiff’s cross motion thereon.^[FN2]

As to the bills denied solely on the ground of EUO nonappearance, the court, while acknowledging that defendant was not required to provide a reason for requesting an EUO in response to plaintiff’s objections thereto (see Flow Chiropractic, P.C. v Travelers Home & Mar. Ins. Co., 44 Misc 3d 132[A], 2014 NY Slip Op 51142[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2014]), nonetheless found that defendant was not entitled to summary judgment on this defense because it had treated plaintiff “as an adversary and created unnecessary obstruction to the claim process.”

The above-stated ground was not an appropriate basis to deny defendant’s motion as to the claims denied for failure to appear for an EUO. It is well settled that an appearance at a duly demanded EUO “is a condition precedent to the insurer’s liability on the policy” (Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 722 [2006]). Thus, as the proof submitted by defendant in support of its motion as to bills 1 through 13 was sufficient to establish that the initial and follow-up letters scheduling an EUO had been timely mailed to plaintiff (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]), that plaintiff had failed to appear for the EUOs (see Stephen Fogel Psychological, P.C., 35 AD3d 720), and that defendant had timely denied the claims on that ground (see St. Vincent’s Hosp. of Richmond., 50 AD3d 1123), defendant was entitled to summary judgment dismissing bills 1 to 13.

Finally, we note that the District Court properly found, in effect, that the $3,253.92 claim should be dismissed, as it was undisputed that defendant had already paid plaintiff for that claim in a separate arbitration.

Consequently, based upon our review of so much of the order as was appealed from and upon the unchallenged findings of the District Court, we conclude that defendant is entitled to dismissal of the complaint in its entirety.

Accordingly, the order, insofar as appealed from, is reversed, defendant’s motion for summary judgment dismissing the complaint is granted in its entirety and plaintiff’s cross motion for summary judgment is denied in its entirety.

RUDERMAN, P.J., GARGUILO and EMERSON, JJ., concur.

ENTER:

Paul Kenny

Chief Clerk

Decision Date: July 22, 2021

Footnotes

Footnote 1: The amount of this claim, $3,253.92, is approximately the remaining balance of the amount sought in the compliant, $3,251.81.

Footnote 2: The court also granted defendant’s motion as to “bills #14-16,” and plaintiff has not cross-appealed from that part of the order or submitted a respondent’s brief.