December 22, 2017

Moon Rehab, P.T., P.C. v Ameriprise Ins. Co. (2017 NY Slip Op 51877(U))

Headnote

The court considered the fact that the plaintiff, Moon Rehab, P.T., P.C., had failed to appear for examinations under oath (EUOs) and that the defendant, Ameriprise Insurance Company, had moved for summary judgment dismissing the complaint on these grounds. The main issue was whether the evidence submitted by the defendant was sufficient to demonstrate that the plaintiff had failed to appear for the EUOs and to give rise to a presumption that the EUO scheduling letters and the denial of claims form had been timely mailed. The court held that the proof submitted by the defendant was indeed sufficient to establish these facts and affirmed the order granting the defendant's motion for summary judgment and denying the plaintiff's cross motion.

Reported in New York Official Reports at Moon Rehab, P.T., P.C. v Ameriprise Ins. Co. (2017 NY Slip Op 51877(U))

Moon Rehab, P.T., P.C. v Ameriprise Ins. Co. (2017 NY Slip Op 51877(U)) [*1]

Moon Rehab, P.T., P.C. v Ameriprise Ins. Co.

2017 NY Slip Op 51877(U) [58 Misc 3d 142(A)]

Decided on December 22, 2017

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This opinion is uncorrected and will not be published in the printed Official Reports.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 22, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2015-1069 K C

Moon Rehab, P.T., P.C., as Assignee of Figueroa Lizzette, Appellant,
against
Ameriprise Insurance Company, Respondent.

Law Offices of Melissa Betancourt, P.C. (Melissa Betancourt, Esq.), for appellant. Bruno, Gerbino & Soriano, LLP (Mitchell L. Kaufman, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Reginald A. Boddie, J.), entered March 4, 2015. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

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

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for examinations under oath (EUOs), and plaintiff cross-moved for summary judgment. By order entered March 4, 2015, the Civil Court granted defendant’s motion and denied plaintiff’s cross motion.

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 EUO scheduling letters and the denial of claims 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]).

Accordingly, the order is affirmed.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 22, 2017