October 18, 2019

Gentlecare Ambulatory Anesthesia Servs. v GEICO Ins. Co. (2019 NY Slip Op 51684(U))

Headnote

The case involved a dispute between a medical provider and an insurance company over first-party no-fault benefits. The insurance company had denied the provider's claim on the basis that the provider had failed to appear for scheduled examinations under oath (EUOs). The Civil Court granted the insurance company's motion for summary judgment, and the provider appealed. The Appellate Term affirmed the order, holding that the proof submitted by the insurance company was sufficient to demonstrate that the denial of claim form had been timely mailed and that the provider had failed to appear for the EUOs. The court also stated that the insurance company was not required to set forth objective reasons for requesting the EUOs in order to establish its entitlement to summary judgment. Therefore, the Civil Court's order was affirmed.

Reported in New York Official Reports at Gentlecare Ambulatory Anesthesia Servs. v GEICO Ins. Co. (2019 NY Slip Op 51684(U))

Gentlecare Ambulatory Anesthesia Servs. v GEICO Ins. Co. (2019 NY Slip Op 51684(U)) [*1]
Gentlecare Ambulatory Anesthesia Servs. v GEICO Ins. Co.
2019 NY Slip Op 51684(U) [65 Misc 3d 138(A)]
Decided on October 18, 2019
Appellate Term, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 18, 2019

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


PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, BERNICE D. SIEGAL, JJ
2017-1930 K C
Gentlecare Ambulatory Anesthesia Services; Lyonel F. Paul, M.D., as Assignee of Jacinthe, Bidgy, Appellants,

against

GEICO Ins. Co., Respondent.

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellants. Rivkin Radler, LLP (Stuart M. Bodoff of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Mary V. Rosado, J.), entered June 6, 2017. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs).

Contrary to plaintiff’s contentions, the proof submitted by defendant in support of its motion was sufficient to give rise to a presumption that the denial of claim form had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) and to demonstrate that plaintiff had failed to appear for the EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Furthermore, as this court has repeatedly stated, defendant was not required to set forth objective reasons for requesting EUOs in order to establish its prima facie entitlement to summary judgment, as an insurer need only demonstrate “as a matter of law that it twice duly demanded an [EUO] from the [*2][provider] . . . that the [provider] twice failed to appear, and that the [insurer] issued a timely denial of the claim[]” (Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2014]; see Gentlecare Ambulatory Anesthesia Servs. v GEICO Ins. Co., 64 Misc 3d 137[A], 2019 NY Slip Op 51161[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; Gentlecare Ambulatory Anesthesia Servs. v Geico Ins. Co., 57 Misc 3d 150[A], 2017 NY Slip Op 51518[U][App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; Parisien v Metlife Auto & Home, 54 Misc 3d 143[A], 2017 NY Slip Op 50208[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; Palafox PT, P.C. v State Farm Mut. Auto. Ins. Co., 49 Misc 3d 144[A], 2015 NY Slip Op 51653[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Consequently, plaintiff has not provided any basis to disturb the Civil Court’s order.

Accordingly, the order is affirmed.

PESCE, P.J., ALIOTTA and SIEGAL, JJ., concur.


ENTER:
Paul Kenny
Chief Clerk
Decision Date: October 18, 2019