May 16, 2025

MSB Physical Therapy, P.C. v Nationwide Ins. (2025 NY Slip Op 50829(U))

Headnote

The court considered the facts surrounding a claim for assigned first-party no-fault benefits filed by MSB Physical Therapy against Nationwide Insurance. The main issues centered on whether the plaintiff had failed to comply with the required examinations under oath, which was claimed by the defendant as a basis for dismissing the action. The Civil Court initially denied the defendant's motion for summary judgment and granted the plaintiff's cross-motion for summary judgment. However, upon appeal, the court reversed the Civil Court's order, granting the defendant's motion and denying the plaintiff's cross-motion, thus siding with the defendant's argument regarding the plaintiff's non-compliance with the examination requirements.

Reported in New York Official Reports at MSB Physical Therapy, P.C. v Nationwide Ins. (2025 NY Slip Op 50829(U))

[*1]

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

2025 NY Slip Op 50829(U) [86 Misc 3d 127(A)]

Decided on May 16, 2025

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This opinion is uncorrected and will not be published in the printed Official Reports.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 May 16, 2025

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

PRESENT: : WAVNY TOUSSAINT, P.J., CHEREE A. BUGGS, LISA S. OTTLEY, JJ
2021-476 K C

MSB Physical Therapy, P.C., as Assignee of Bright, Sayquan U, Respondent,

against

Nationwide Ins., Appellant.

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Richard Tsai, J.; op 72 Misc 3d 1215[A], 2021 NY Slip Op 50750[U] [2021]), dated July 13, 2021. The order, insofar as appealed from, denied the branches of defendant’s motion seeking summary judgment dismissing the first through fifth causes of action and granted the branches of plaintiff’s cross-motion seeking summary judgment on the first through fifth causes of action. Justices Buggs and Ottley have been substituted for former Justices Aliotta and Weston.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, the branches of defendant’s motion seeking summary judgment dismissing the first through fifth causes of action are granted and the branches of plaintiff’s cross-motion seeking summary judgment on the first through fifth causes of action are denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order of the Civil Court as denied the branches of defendant’s motion seeking summary judgment dismissing the first through fifth causes of action on the ground that plaintiff failed to appear for duly scheduled examinations under oath, and granted the branches of plaintiff’s cross-motion seeking summary judgment on the first through fifth causes of action.

For the reasons stated in MSB Physical Therapy, P.C., as Assignee of Bright, Sayquan U v Nationwide Ins. (— Misc 3d —, 2025 NY Slip Op ___ [Appeal No. 2021-478 K C], decided herewith), the order (72 Misc 3d 1215[A], 2021 NY Slip Op 50750[U] [Civ Ct, Kings County 2021]), insofar as appealed from, is reversed, the branches of defendant’s motion seeking [*2]summary judgment dismissing the first through fifth causes of action are granted and the branches of plaintiff’s cross-motion seeking summary judgment on the first through fifth causes of action are denied.

The decision and order of this court dated December 23, 2022 (77 Misc 3d 140[A], 2022 NY Slip Op 51377[U] is hereby recalled and vacated (see motion decided simultaneously herewith).

TOUSSAINT, P.J., BUGGS and OTTLEY, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: May 16, 2025