March 24, 2023

MT Physical Therapy v Lancer Ins. (2023 NY Slip Op 50297(U))

Headnote

The court considered an appeal from an order of the Civil Court of the City of New York, Kings County, granting the defendant's motion for summary judgment dismissing the complaint in an action to recover assigned first-party no-fault benefits. The main issue decided was whether the plaintiff's assignor's failure to appear for a scheduled examination under oath (EUO) constituted a failure to appear under the no-fault regulations. The court held that the defendant made a prima facie showing that the assignor's failure to appear for the scheduled EUOs constituted a failure to appear under the no-fault regulations, and also established that the assignor had failed to appear for a second scheduled EUO. Therefore, the court affirmed the order granting the defendant's motion for summary judgment dismissing the complaint.

Reported in New York Official Reports at MT Physical Therapy v Lancer Ins. (2023 NY Slip Op 50297(U))

MT Physical Therapy v Lancer Ins. (2023 NY Slip Op 50297(U)) [*1]

MT Physical Therapy v Lancer Ins.

2023 NY Slip Op 50297(U) [78 Misc 3d 130(A)]

Decided on March 24, 2023

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This opinion is uncorrected and will not be published in the printed Official Reports.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 March 24, 2023

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

PRESENT: : WAVNY TOUSSAINT, P.J., MARINA CORA MUNDY, LISA S. OTTLEY, JJ
2022-272 K C

MT Physical Therapy, as Assignee of Yuri Ghazaryan, Appellant,
against
Lancer Insurance, Respondent.

Law Office of Zara Javakov, Esq., P.C. (Victoria Tarasova of counsel), for appellant. Hollander Legal Group, P.C. (Allan S. Hollander and Brian Kaufman of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Heela D. Capell, J.), dated March 3, 2022. The order granted defendant’s motion for summary judgment dismissing the complaint.

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.

Contrary to plaintiff’s sole contention, defendant made a prima facie showing that plaintiff’s assignor’s failure to appear for a duly scheduled examination under oath (EUO) on February 6, 2019 constitutes a failure to appear under the no-fault regulations (11 NYCRR 65-3.5). We note that defendant also established that the assignor failed to appear for a second scheduled EUO on March 7, 2019.

Accordingly, the order is affirmed.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: March 24, 2023