December 13, 2019

Margulis v Travelers Ins. (2019 NY Slip Op 52051(U))

Headnote

The court considered an appeal from an order in a case where a provider was seeking to recover assigned first-party no-fault benefits from an insurance company. The main issue in the case was whether the provider had failed to appear for scheduled examinations under oath (EUOs) and whether the insurance company was entitled to summary judgment dismissing the complaint based on this failure. The court held that the insurance company had established that the EUO had been scheduled and the provider had failed to appear, and that the claims had been timely denied on that basis. As the provider failed to raise a triable issue of fact in opposition to the insurance company's motion, the court granted the insurance company's cross motion for summary judgment dismissing the complaint. Therefore, the court reversed the lower court's order, denied the provider's motion for summary judgment, and granted the insurance company's cross motion for summary judgment dismissing the complaint.

Reported in New York Official Reports at Margulis v Travelers Ins. (2019 NY Slip Op 52051(U))

Margulis v Travelers Ins. (2019 NY Slip Op 52051(U)) [*1]

Margulis v Travelers Ins.

2019 NY Slip Op 52051(U) [66 Misc 3d 129(A)]

Decided on December 13, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 December 13, 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
2018-1228 K C

Yevgeniy Margulis Ph.D, as Assignee of Jerwin Griffith and Moye Yusef, Respondent,
against
Travelers Insurance, Appellant.

Law Offices of Aloy O. Ibuzor (Erika E.E. Treco 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 (Harriet L. Thompson, J.), entered February 21, 2018. The order granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint.

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

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

In its cross motion, defendant established that initial and follow-up letters scheduling an EUO had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]); that plaintiff 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, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 13, 2019