May 16, 2025

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

https://www.beynensonlaw.com/case-law/msb-physical-therapy-p-c-v-nationwide-ins-2025-ny-slip-op50829u/

Court: Appellate Term, Second Department
Decided: May 16, 2025
Citation: 2025 NY Slip Op 50829(U) · 86 Misc 3d 127(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Earlier history: Appeal from MSB Physical Therapy, P.C. v Nationwide Ins. (2021 NY Slip Op 50750(U)) (Reversed)
Issues: EUO no-show

Cite as

MSB Physical Therapy, P.C. v Nationwide Ins., 86 Misc 3d 127(A), 2025 NY Slip Op 50829(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2025)

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Summary

Editorial summary by Beynenson Law, not part of the court’s decision.

The insurer was granted summary judgment dismissing the first through fifth causes of action based on the provider's EUO nonappearance. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and denied the provider's corresponding cross-motion branches. It relied on the companion appeal decided the same day, No. 2021-478 K C, and recalled and vacated its prior decision and order.

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This opinion is uncorrected and will not be published in the printed Official Reports.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

Cited in this decision

A label shows how this decision treated the case it cites.

MSB Physical Therapy, P.C. v Nationwide Ins. (2021 NY Slip Op 50750(U)) ReversedEUO requests sent before receipt of a claim do not toll the insurer's 30-day period to pay or deny it.

Similar decisions

MSB Physical Therapy v Nationwide Ins. (2022 NY Slip Op 51381(U))The insurer failed to establish timely denial after alleged EUO nonappearances, and the provider failed to establish entitlement to summary judgment.
Island Life Chiropractic Pain Care, PLLC v Nationwide Ins. (2021 NY Slip Op 50765(U))The insurer's motion for summary judgment dismissing the provider's claims based on EUO nonappearance was denied.
Comprehensive Care Physical Therapy, P.C. v State-Wide Ins. Co. (2017 NY Slip Op 51448(U))The insurer's affirmation established the provider's failure to appear for EUOs on the five claims at issue on appeal.
Allay Med. Servs., P.C. v Nationwide Ins. (2021 NY Slip Op 50764(U))The insurer's summary judgment motion based on EUO nonappearance was denied because it failed to establish timely denial.
Hands On Physical Therapy Care v Nationwide Ins. (2022 NY Slip Op 50797(U))The insurer failed to establish timely EUO nonappearance denials for the provider's first three causes of action.