March 1, 2019

Neptune Med. Care, P.C. v Praetorian Ins. Co. (2019 NY Slip Op 51052(U))

Headnote

The relevant facts considered by the court in this case were that the plaintiff, Neptune Medical Care, P.C., sought to recover first-party no-fault benefits, and the defendant, Praetorian Insurance Company, denied the claims on the grounds that the assignors of the plaintiff failed to appear for examinations under oath (EUOs) and independent medical examinations (IMEs). Both parties filed motions for summary judgment, and the Civil Court denied both motions, finding that the only triable issues were whether the EUO and IME scheduling letters had been timely and properly mailed. The main issue decided by the court was whether the defendant had timely and properly scheduled the EUOs and IMEs, and whether the plaintiff's assignors had failed to appear at duly scheduled appointments. The court held that the defendant failed to establish that the initial and follow-up letters scheduling the EUOs and IMEs had been timely mailed, and as a result, they failed to demonstrate that the appointments had been properly scheduled. Therefore, the defendant was not entitled to summary judgment dismissing the complaint, and the order was affirmed, with costs.

Reported in New York Official Reports at Neptune Med. Care, P.C. v Praetorian Ins. Co. (2019 NY Slip Op 51052(U))

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

Neptune Medical Care, P.C., as Assignee of George Perez and Richie Rodriguez, Respondent,
against
Praetorian Insurance Company, Appellant.

Law Office of Moira Doherty, P.C. (Janice Rosen of counsel), for appellant. Law Offices of Damin J. Toell, P.C. (Damin J. Toell of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered January 29, 2016. The order, insofar as appealed from and as limited by the brief, denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint on the ground that plaintiff’s assignors had failed to appear for duly scheduled examinations under oath (EUOs) and independent medical examinations (IMEs). The Civil Court, by order dated January 29, 2016, denied both motions finding, pursuant to CPLR 3212 (g), that plaintiff had established its prima facie case, that defendant had established that it had timely denied the claims on the grounds that plaintiff’s assignors had failed to appear for EUOs and IMEs, and that the only triable issues were whether the EUO and IME scheduling letters had been timely and properly mailed.

Contrary to defendant’s contention, defendant failed to establish that the initial and follow-up letters scheduling the EUOs and IMEs had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). As a result, defendant failed to demonstrate that the EUOs and IMEs had been properly scheduled and, thus, that plaintiff’s assignors had failed to appear at duly scheduled EUOs and IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 722 [2006]). Consequently, defendant is not entitled to summary judgment dismissing the complaint.

Accordingly, the order, insofar as appealed from, is affirmed.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: March 01, 2019