August 19, 2022

MSB Physical Therapy, P.C. v Nationwide Ins. (2022 NY Slip Op 50902(U))

Headnote

The court considered the fact that the plaintiff, MSB Physical Therapy, P.C., was seeking to recover assigned first-party no-fault benefits from the defendant, Nationwide Ins. The main issue was whether the plaintiff failed to appear at duly scheduled examinations under oath (EUOs), and if so, if the EUOs were scheduled at reasonably convenient dates. The court held that the plaintiff repeatedly sent letters to the defendant seeking to reschedule the EUOs for unspecified dates two months beyond the initial scheduled date, and the defendant complied with these requests. As a result, the court affirmed the order granting the defendant's motion for summary judgment dismissing the complaint, as the plaintiff failed to demonstrate the existence of an issue of fact as to whether the EUOs were scheduled at reasonably convenient dates.

Reported in New York Official Reports at MSB Physical Therapy, P.C. v Nationwide Ins. (2022 NY Slip Op 50902(U))

MSB Physical Therapy, P.C. v Nationwide Ins. (2022 NY Slip Op 50902(U)) [*1]

MSB Physical Therapy, P.C. v Nationwide Ins.

2022 NY Slip Op 50902(U) [76 Misc 3d 131(A)]

Decided on August 19, 2022

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This opinion is uncorrected and will not be published in the printed Official Reports.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 August 19, 2022

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

PRESENT: : THOMAS P. ALIOTTA, P.J., MICHELLE WESTON, WAVNY TOUSSAINT, JJ
2020-419 K C

MSB Physical Therapy, P.C., as Assignee of Bright, Sayquan U, Appellant,
against
Nationwide Ins., Respondent.

The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for appellant. Hollander Legal Group, P.C. (Allan S. Hollander of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Carolyn Walker-Diallo, J.), entered May 13, 2019. 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, plaintiff appeals from an order of the Civil Court granting defendant’s motion for summary judgment dismissing the complaint on the ground that plaintiff failed to appear at duly scheduled examinations under oath (EUOs), and denying plaintiff’s cross motion for summary judgment.

Plaintiff repeatedly sent letters to defendant which sought to reschedule the EUOs for unspecified dates two months beyond the date on which defendant had initially scheduled the EUOs. Defendant complied with plaintiff’s requests. Under the circumstances, contrary to plaintiff’s sole contention on appeal with respect to defendant’s motion, plaintiff failed to demonstrate the existence of an issue of fact as to whether the EUOs were scheduled at reasonably convenient dates (see 11 NYCRR 65-3.5 [e]).

Accordingly, the order is affirmed.

ALIOTTA, P.J., WESTON and TOUSSAINT, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: August 19, 2022