Essential Health Chiropractic, P.C. v National Liab. & Fire Ins. Co. (2021 NY Slip Op 50881(U))

The Law Office of Gregory A. Goodman, P.C. (Gregory A. Goodman of counsel), for appellant. Law Offices of Moira Doherty, P.C. (Maureen Knodel of counsel), for respondent.

Appeal from an order of the District Court of Suffolk County, Fourth District (C. Stephen Hackeling, J.), dated April 16, 2019. The order, insofar as appealed from, granted the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as was asserted by Essential Health Chiropractic, P.C. and denied the cross motion by Essential Health Chiropractic, P.C. for summary judgment.

ORDERED that the order, insofar as appealed from, is modified by providing that the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as was asserted by plaintiff Essential Health Chiropractic, P.C. is denied; as so modified, the order is affirmed, without costs.

In this action by providers to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that plaintiffs’ assignor had failed to appear for duly scheduled examinations under oath (EUOs) and independent medical examinations (IMEs). Insofar as is relevant to this appeal, plaintiff Essential Health Chiropractic, P.C. (Essential) opposed the motion and cross-moved for summary judgment. Essential appeals from so much of the order of the District Court as granted the branch of [*2]defendant’s motion seeking summary judgment dismissing so much of the complaint as was asserted by Essential and denied the cross motion by Essential for summary judgment.

While defendant made a prima facie showing that the NF-10 forms denying claims which Essential had submitted were mailed, the affidavit of Essential’s owner was sufficient to raise an issue of fact as to whether the denial of claim forms at issue had been mailed to Essential (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Healing Health Prods., Inc. v New York Cent. Mut. Fire Ins. Co., 44 Misc 3d 59 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]). As an issue of fact exists, neither defendant nor Essential is entitled to summary judgment on so much of the complaint as was asserted by Essential (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

The record before us also indicates that defendant failed to establish that it had timely and properly mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) letters scheduling EUOs of Essential’s assignor, for which Essential’s assignor failed to appear, and that the assignor had also failed to appear for scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). In view of the foregoing, defendant failed to demonstrate its entitlement to summary judgment dismissing Essential’s claims based upon the assignor’s failure to comply with conditions precedent to coverage (see id.).

Accordingly, the order, insofar as appealed from, is modified by providing that the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as was asserted by plaintiff Essential Health Chiropractic, P.C. is denied.

VOUTSINAS, J.P., EMERSON and DRISCOLL, JJ., concur.