November 13, 2020

Island Life Chiropractic Pain Care, PLLC v Ameriprise Ins. (2020 NY Slip Op 51369(U))

Headnote

The court considered the facts that the defendant, Ameriprise Insurance, had timely mailed initial and follow-up letters scheduling an examination under oath, which the plaintiff's assignor had failed to appear for. The defendant had also timely denied the claims on that ground. The main issue decided was whether the defendant was entitled to summary judgment dismissing the complaint for failure to appear for the examination under oath. The holding of the court was that the defendant's motion for summary judgment was granted, and the plaintiff's cross motion for summary judgment was denied. Therefore, the complaint was dismissed.

Reported in New York Official Reports at Island Life Chiropractic Pain Care, PLLC v Ameriprise Ins. (2020 NY Slip Op 51369(U))

Island Life Chiropractic Pain Care, PLLC v Ameriprise Ins. (2020 NY Slip Op 51369(U)) [*1]

Island Life Chiropractic Pain Care, PLLC v Ameriprise Ins.

2020 NY Slip Op 51369(U) [69 Misc 3d 143(A)]

Decided on November 13, 2020

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This opinion is uncorrected and will not be published in the printed Official Reports.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 November 13, 2020

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

PRESENT: : THOMAS P. ALIOTTA, P.J., DAVID ELLIOT, BERNICE D. SIEGAL, JJ
2018-2321 K C

Island Life Chiropractic Pain Care, PLLC, as Assignee of Lambert, Lucy, Respondent,
against
Ameriprise Insurance, Appellant.

Bruno, Gerbino, Soriano & Aitken, LLP (Nathan M. Shapiro of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Sharon Bourne-Clarke, J.), entered July 23, 2018. The order denied defendant’s motion for summary judgment dismissing the complaint and granted plaintiff’s cross motion for summary judgment.

ORDERED that the order is reversed, with $30 costs, defendant’s motion for summary judgment dismissing the complaint is granted and plaintiff’s cross motion for summary judgment is denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court which denied its motion for summary judgment dismissing the complaint and granted plaintiff’s cross motion for summary judgment.

Defendant established that initial and follow-up letters scheduling an examination under oath had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]); that plaintiff’s assignor had failed to appear on either date (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]); and that the claims had been timely denied on that ground (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123). As plaintiff failed to raise a triable issue of fact in opposition to defendant’s motion, defendant is entitled to summary judgment dismissing the complaint.

Accordingly, the order is reversed, defendant’s motion for summary judgment dismissing the complaint is granted and plaintiff’s cross motion for summary judgment is denied.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 13, 2020