November 30, 2018

Oriental Health Acupuncture, P.C. v 21st Century Ins. Co. (2018 NY Slip Op 51761(U))

Headnote

The main issue in this case was whether the plaintiff, Oriental Health Acupuncture, P.C., was entitled to recover assigned first-party no-fault benefits from the defendant, 21st Century Insurance Company, after the defendant's motion for summary judgment dismissing the complaint was granted by the Civil Court. The court considered the fact that the plaintiff's assignor had failed to appear for examinations under oath (EUOs) and that the letters annexed to defendant's motion were delay letters which failed to toll defendant's time to pay or deny the claims. The court also reviewed the EUO scheduling letters mailed by the law firm retained by the defendant, and found no issue with their sufficiency. The holding of the court was that the order granting defendant's motion for summary judgment was affirmed, as the plaintiff had failed to provide any basis upon which to reverse the order.

Reported in New York Official Reports at Oriental Health Acupuncture, P.C. v 21st Century Ins. Co. (2018 NY Slip Op 51761(U))

Oriental Health Acupuncture, P.C. v 21st Century Ins. Co. (2018 NY Slip Op 51761(U)) [*1]

Oriental Health Acupuncture, P.C. v 21st Century Ins. Co.

2018 NY Slip Op 51761(U)

Decided on November 30, 2018

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This opinion is uncorrected and will not be published in the printed Official Reports.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 November 30, 2018

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

PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2016-268 Q C

Oriental Health Acupuncture, P.C., as Assignee of Davis, Christina, Appellant,
against
21st Century Insurance Company, Respondent.

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Law Offices of Buratti, Rothenberg & Burns (Sharon A. Brennan of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Terrence C. O’Connor, J.), entered December 22, 2015. 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 which granted defendant’s motion for summary judgment on the ground that plaintiff’s assignor had failed to appear for examinations under oath (EUOs).

Plaintiff correctly contends that the letters annexed to defendant’s motion as Exhibit “C” were delay letters which failed to toll defendant’s time to pay or deny the claims. However, defendant’s motion also included copies of the EUO scheduling letters mailed by the law firm retained by defendant to conduct the EUOs, and plaintiff has raised no issue with respect to the sufficiency of those letters (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Great Health Care Chiropractic, P.C. v Nationwide Ins., 46 Misc 3d 130[A], 2014 NY Slip Op 51812[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]).

In view of the foregoing, and since plaintiff’s remaining contention lacks merit, plaintiff has provided no basis upon which to reverse the order.

Accordingly, the order is affirmed.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 30, 2018