Reported in New York Official Reports at Focus Chiropractic, P.C. v Global Liberty Ins. Co. of N.Y. (2020 NY Slip Op 51006(U))
| Focus Chiropractic, P.C. v Global Liberty Ins. Co. of N.Y. |
| 2020 NY Slip Op 51006(U) [68 Misc 3d 133(A)] |
| Decided on August 28, 2020 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 August 28, 2020
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : THOMAS P. ALIOTTA, P.J., DAVID ELLIOT, WAVNY TOUSSAINT, JJ
2019-127 K C
against
Global Liberty Ins. Co. of N.Y., Appellant.
Law Office of Jason Tenenbaum, P.C. (Shaaker Bhuiyan of counsel), for appellant. Gary Tsirelman, P.C. (Gary Tsirelman, Esq.), for respondent (no brief filed).
Appeal from an order of the Civil Court of the City of New York, Kings County (Lorna J. McAllister, J.), entered November 2, 2018. The order, insofar as appealed from as limited by the brief, denied the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the claim which was denied on the ground that plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations.
ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the claim which was denied on the ground that plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations is granted.
In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the grounds that plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations (IMEs) and that the amounts plaintiff sought to recover upon the remaining claims exceeded the amount permitted by the workers’ compensation fee schedule. In opposition to defendant’s motion, plaintiff only submitted an affirmation from plaintiff’s counsel. As limited by its brief, defendant appeals from so much of an order of the Civil Court entered November 2, 2018 as denied the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the claim which was denied on the ground that plaintiff’s assignor had failed to appear for duly scheduled IMEs.
The affidavit submitted by defendant in support of its motion sufficiently established that the IME scheduling letters had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) to plaintiff’s assignor, thereby duly scheduling the IMEs. Defendant also established that the assignor had failed to appear for the scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Thus, defendant demonstrated that plaintiff had failed to comply with a condition [*2]precedent to coverage (id. at 722). Defendant further established that when the claim at issue was subsequently received, it was timely denied (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123) on that ground. As plaintiff failed to raise a triable issue of fact, the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the claim which was denied on the ground that plaintiff’s assignor had failed to appear for duly scheduled IMEs should have been granted.
Accordingly, the order, insofar as appealed from, is reversed and the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the claim which was denied on the ground that plaintiff’s assignor had failed to appear for duly scheduled IMEs is granted.
ALIOTTA, P.J., ELLIOT and TOUSSAINT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: August 28, 2020
Reported in New York Official Reports at S.O.V. Acupuncture, P.C. v Global Liberty Ins. Co. of N.Y. (2020 NY Slip Op 51004(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
Global Liberty Ins. Co. of N.Y., Appellant.
Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum of counsel), for appellant. Gary Tsirelman, P.C. (Douglas Mace of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Richard J. Montelione, J.), entered October 11, 2018. The order denied defendant’s motion for summary judgment dismissing the complaint.
ORDERED that the order is modified by providing that the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for dates of service December 28, 2015 and April 19, 2016, and so much of the unpaid portion of the claims billed using CPT codes 97810, 97811, 99202, and 99212, and the claims billed using CPT code 97026, except for dates of service December 11, 2015, March 1, 2016, March 17, 2016 and March 28, 2016, are granted; as so modified, the order is affirmed, without costs.
In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the grounds that plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations (IMEs), that a portion of one claim was submitted more than 45 days after the subject services had been rendered, and that the amounts plaintiff sought to recover upon the remaining claims exceeded the amount permitted by the workers’ compensation fee schedule. In opposition to defendant’s motion, plaintiff only submitted an affirmation from plaintiff’s counsel. By order entered October 11, 2018, the Civil Court denied defendant’s motion.
In support of its motion, defendant submitted an affidavit which sufficiently established that the IME scheduling letters had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). To the extent plaintiff’s counsel argued that the IME scheduling letters had been mailed to the wrong address, the record demonstrates conclusively that the address to which the IME scheduling letters had been mailed matched the one provided by plaintiff’s assignor on the assignor’s handwritten, sworn application for no-fault benefits (NF-2) which was submitted to defendant. Consequently, defendant established that the address to which the IME scheduling letters were mailed was proper (see Valdan Acupuncture, [*2]P.C. v 21st Century Advantage Ins. Co., 63 Misc 3d 156[A], 2019 NY Slip Op 50822[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; Sunlight Med. Care, P.C. v Esurance Ins. Co., 49 Misc 3d 130[A], 2015 NY Slip Op 51410[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Defendant also established that the assignor had failed to appear for the duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Thus, defendant demonstrated that plaintiff had failed to comply with a condition precedent to coverage (id. at 722). As defendant’s motion further established that defendant had timely denied (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123) the claim for services rendered on April 19, 2016 on that ground, and plaintiff failed to raise a triable issue of fact in opposition to this branch of defendant’s motion, defendant was entitled to summary judgment dismissing so much of the complaint as sought to recover upon the claim for services rendered on April 19, 2016.
With respect to the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover for services rendered on December 28, 2015, the affidavit of defendant’s claims adjuster established that the claim for services rendered on December 28, 2015 had been submitted more than 45 days after those services had been rendered (see 11 NYCRR 65-2.4 [c]) and that defendant had timely mailed (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123) its denial of claim form, which denied the claim on that ground. Furthermore, defendant’s denial of claim form advised plaintiff that late notice would be excused if reasonable justification for the failure to give timely notice was provided (11 NYCRR 65-2.4 [c]). As plaintiff failed to raise a triable issue of fact in response to defendant’s prima facie showing, the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover for services rendered on December 28, 2015 should have been granted.
With respect to the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover the unpaid portion of plaintiff’s claims which were denied on the ground that the amount sought exceeded the amount permitted by the workers’ compensation fee schedule, defendant established that it had fully paid plaintiff for the services billed under CPT codes 97810, 97811, 99202, and 99212 in accordance with the workers’ compensation fee schedule for acupuncture services performed by chiropractors (see Great Wall Acupuncture, P.C. v Geico Ins. Co., 26 Misc 3d 23 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]). Likewise, defendant demonstrated that it had fully paid plaintiff for the services billed under CPT codes 97026, except for the services rendered on December 11, 2015, March 1, 2016, March 17, 2016 and March 28, 2016, in accordance with the workers’ compensation fee schedule for acupuncture services performed by chiropractors (see id.). Thus, defendant established its prima facie entitlement to summary judgment upon the unpaid portion of those claims. As plaintiff failed to raise a triable issue of fact, the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the unpaid portion of those claims should have been granted. However, as defendant concedes that the affidavit of its professional fee schedule coder stated that plaintiff was entitled to recover upon claims seeking payment for services billed using CPT 90739, defendant is not entitled to summary judgment with respect to those claims.
Accordingly, the order is modified by providing that the branches of defendant’s motion [*3]seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for dates of service December 28, 2015 and April 19, 2016, and so much of the unpaid portion of the claims billed using CPT codes 97810, 97811, 99202, and 99212, and claims billed using CPT code 97026, except for dates of service December 11, 2015, March 1, 2016, March 17, 2016 and March 28, 2016, are granted.
ALIOTTA, P.J., ELLIOT and TOUSSAINT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: August 28, 2020
Reported in New York Official Reports at Quest Supply, Inc. v NY Cent. Mut. Fire Ins. Co. (2020 NY Slip Op 51003(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
NY Central Mutual Fire Ins. Co., Appellant.
Nightingale Law, P.C. (Michael S. Nightingale of counsel), for appellant. Gary Tsirelman, P.C. (Devon Riley Christian of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Lorna J. McAllister, J.), entered October 26, 2018. The order, insofar as appealed from, denied the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover the sum of $1,150.
ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover the sum of $1,150 is granted.
In this action by a provider to recover assigned first-party no-fault benefits, defendant moved, insofar as is relevant to this appeal, for summary judgment dismissing so much of the complaint as sought to recover the sum of $1,150, on the ground that plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations (IMEs). In support of the motion, defendant submitted an affidavit by an employee of the company which had been retained by defendant to schedule the pre-claim IMEs, which affidavit sufficiently demonstrated that the scheduling letters had been properly mailed to plaintiff’s assignor (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Defendant proffered affidavits from the chiropractors who were to perform chiropractic and acupuncture IMEs, which sufficiently established that plaintiff’s assignor had failed to appear for those duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). In addition, an affidavit executed by defendant’s claim representative demonstrated that the denial of claim form, which denied the claim seeking to recover the sum of $1,150 based on the assignor’s nonappearance at the IMEs, had been timely mailed (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123).
In opposition, the affirmation of plaintiff’s counsel failed to demonstrate the existence of a triable issue of fact, since no issue was raised with respect to the scheduling letters mailed directly to plaintiff’s assignor (see generally MML Med. Care, P.C. v Praetorian Ins. Co., 46 Misc 3d 127[A], 2014 NY Slip Op 51792[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists [*2]2014]). Plaintiff’s remaining contention regarding defendant’s proof that the assignor had failed to appear for the IMEs lacks merit.
Accordingly, the order, insofar as appealed from, is reversed, and the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover the sum of $1,150 is granted.
ALIOTTA, P.J., SIEGAL and TOUSSAINT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: August 28, 2020
Reported in New York Official Reports at Colin v Global Liberty Ins. Co. of N.Y. (2020 NY Slip Op 51002(U))
| Colin v Global Liberty Ins. Co. of N.Y. |
| 2020 NY Slip Op 51002(U) [68 Misc 3d 132(A)] |
| Decided on August 28, 2020 |
| 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 August 28, 2020
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : THOMAS P. ALIOTTA, P.J., DAVID ELLIOT, WAVNY TOUSSAINT, JJ
2018-2315 K C
against
Global Liberty Ins. Co. of N.Y., Appellant.
Law Office of Jason Tenenbaum, P.C. (Shaaker Bhuiyan of counsel), for appellant. Kopelevich & Feldsherova, P.C. (David Landfair of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Lorna J. McAllister, J.), entered October 25, 2018. The order, insofar as appealed from and as limited by the brief, denied defendant’s motion for summary judgment dismissing the complaint.
ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is granted.
In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations (IMEs). By order entered October 25, 2018, the Civil Court, insofar as is relevant to this appeal, denied the motion, but found, in effect pursuant to CPLR 3212 (g), that defendant had established timely mailing of the denial of claim forms.
In support of its motion, defendant submitted an affidavit by a supervisor employed by Omnimed Evaluation Services, which had been retained by defendant to schedule IMEs, which affidavit sufficiently established that the IME scheduling letters had been timely and properly mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). The record demonstrates conclusively that the address to which the IME scheduling letters had been mailed to plaintiff’s assignor matched the one provided by plaintiff’s assignor on the assignor’s sworn application for no-fault benefits (NF-2) and on plaintiff’s NF-3 forms, all of which were submitted to defendant. To the extent plaintiff contends that defendant was required to also send the IME scheduling letters to the same address but with a zip code which differed by one digit simply because the police report set forth that zip code, that contention lacks merit. Not only did plaintiff’s assignor swear under penalty of perjury that the zip code which defendant used was the correct zip code, plaintiff’s opposition papers did not contain an affidavit from plaintiff’s assignor which asserted that the zip code to which defendant mailed the IME scheduling letters was incorrect. Defendant also established that the assignor had failed to appear [*2]for the duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Thus, defendant demonstrated that plaintiff had failed to comply with a condition precedent to coverage (id. at 722). In view of the foregoing, and as plaintiff has not challenged the Civil Court’s finding, in effect, that defendant is otherwise entitled to judgment, the order, insofar as appealed from, is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.
ALIOTTA, P.J., ELLIOT and TOUSSAINT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: August 28, 2020
Reported in New York Official Reports at Atlantic Chiropractic, P.C. v Global Liberty Ins. Co. (2020 NY Slip Op 51001(U))
| Atlantic Chiropractic, P.C. v Global Liberty Ins. Co. |
| 2020 NY Slip Op 51001(U) [68 Misc 3d 132(A)] |
| Decided on August 28, 2020 |
| 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 August 28, 2020
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : THOMAS P. ALIOTTA, P.J., DAVID ELLIOT, WAVNY TOUSSAINT, JJ
2018-2227 K C
against
Global Liberty Insurance Company, Appellant.
Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum of counsel), for appellant. Law Offices of Anna Goldman, P.C., for respondent (no brief filed).
Appeal from an order of the Civil Court of the City of New York, Kings County (Odessa Kennedy, J.), entered September 12, 2018. The order, insofar as appealed from and as limited by the brief, denied defendant’s 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, defendant moved for summary judgment dismissing the complaint on the ground that the amounts sought exceeded the amount permitted by the workers’ compensation fee schedule. Plaintiff cross-moved for summary judgment. By order entered September 12, 2018, the Civil Court denied defendant’s motion, but, in effect pursuant to CPLR 3212 (g), held that the only remaining issue for trial was defendant’s defense that the amounts sought exceeded the amounts permitted by the workers’ compensation fee schedule.
Contrary to defendant’s contention, the Civil Court properly held that defendant’s motion papers failed to establish, as a matter of law, that the fees that had been charged by plaintiff exceeded the amounts permitted by the workers’ compensation fee schedule (see Island Life Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co., 57 Misc 3d 128[A], 2017 NY Slip Op 51157[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]).
Accordingly, the order, insofar as appealed from, is affirmed.
ALIOTTA, P.J., ELLIOT and TOUSSAINT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: August 28, 2020
Reported in New York Official Reports at Pavlova v Nationwide Ins. (2020 NY Slip Op 50999(U))
| Pavlova v Nationwide Ins. |
| 2020 NY Slip Op 50999(U) [68 Misc 3d 132(A)] |
| Decided on August 28, 2020 |
| 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 August 28, 2020
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : THOMAS P. ALIOTTA, P.J., DAVID ELLIOT, WAVNY TOUSSAINT, JJ
2018-2017 K C
against
Nationwide Ins., Respondent.
The Rybak Firm, PLLC (Damin Toell of counsel), for appellant. Hollander Legal Group, P.C. (Allan Hollander of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered July 20, 2018. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.
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 on the ground that plaintiff’s assignor had failed to appear for duly scheduled examinations under oath (EUOs), and denying plaintiff’s cross motion for summary judgment.
Contrary to plaintiff’s sole contention, defendant’s proof sufficiently established that plaintiff’s assignor had failed to appear for the scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).
Accordingly, the order is affirmed.
ALIOTTA, P.J., ELLIOT and TOUSSAINT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: August 28, 2020
Reported in New York Official Reports at NL Quality Med., P.C. v GEICO Ins. Co. (2020 NY Slip Op 50998(U))
| NL Quality Med., P.C. v GEICO Ins. Co. |
| 2020 NY Slip Op 50998(U) [68 Misc 3d 132(A)] |
| Decided on August 28, 2020 |
| 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 August 28, 2020
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : THOMAS P. ALIOTTA, P.J., DAVID ELLIOT, WAVNY TOUSSAINT, JJ
2018-2005 K C
against
GEICO Ins. Co., Appellant.
Rivkin Radler, LLP, (Stuart M. Bodoff and Cheryl F. Korman of counsel), for appellant. The Rybak Firm, PLLC, (Damin J. Toell of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Michael Gerstein, J.), entered September 5, 2018. The order, insofar as appealed from, denied defendant’s motion for summary judgment dismissing the complaint.
ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is granted.
In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath, and plaintiff cross-moved for summary judgment. Defendant appeals from so much of an order of the Civil Court as denied defendant’s motion.
For the reasons stated in NL Quality Med., P.C., as Assignee of Sumlar, Tanya v GEICO Ins. Co., (___ Misc 3d ___, 2020 NY Slip Op ______ [appeal No. 2018-2004 K C], decided
herewith), the order, insofar as appealed from, is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.
ALIOTTA, P.J., ELLIOT and TOUSSAINT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: August 28, 2020
Reported in New York Official Reports at NL Quality Med., P.C. v GEICO Ins. Co. (2020 NY Slip Op 50997(U))
| NL Quality Med., P.C. v GEICO Ins. Co. |
| 2020 NY Slip Op 50997(U) [68 Misc 3d 131(A)] |
| Decided on August 28, 2020 |
| 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 August 28, 2020
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : THOMAS P. ALIOTTA, P.J., DAVID ELLIOT, WAVNY TOUSSAINT, JJ
2018-2004 K C
against
GEICO Ins. Co., Appellant.
Rivkin Radler, LLP (Stuart M. Bodoff and Cheryl F. Korman of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Michael Gerstein, J.), entered September 5, 2018. The order, insofar as appealed from, denied defendant’s motion for summary judgment dismissing the complaint.
ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is granted.
In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs), and plaintiff cross-moved for summary judgment. Defendant appeals from so much of an order of the Civil Court as denied defendant’s motion.
The affidavit submitted by defendant established that the EUO scheduling letters and the denial of claim forms had been timely mailed in accordance with defendant’s standard office practices and procedures (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). In addition, the affirmation submitted by defendant’s attorney, who was present in her office to conduct the EUO of plaintiff on the scheduled dates, was sufficient to establish that plaintiff had failed to appear on those dates. As a result, defendant demonstrated its prima facie entitlement to summary judgment (see Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2014]; Gentlecare Ambulatory Anesthesia Servs. v GEICO Ins. Co., 63 Misc 3d 152[A], 2019 NY Slip Op 50759[A] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; Palafox PT, P.C. v State Farm Mut. Auto. Ins. Co., 49 Misc 3d 144[A], 2015 NY Slip Op 51653[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Plaintiff failed to raise a triable issue of fact in opposition to defendant’s motion.
Accordingly, the order, insofar as appealed from, is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.
ALIOTTA, P.J., ELLIOT and TOUSSAINT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: August 28, 2020
Reported in New York Official Reports at Alignment Chiropractic, P.C. v Travelers Home & Mar. Ins. Co. (2020 NY Slip Op 50994(U))
| Alignment Chiropractic, P.C. v Travelers Home & Mar. Ins. Co. |
| 2020 NY Slip Op 50994(U) [68 Misc 3d 131(A)] |
| Decided on August 28, 2020 |
| 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 August 28, 2020
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : THOMAS P. ALIOTTA, P.J., DAVID ELLIOT, WAVNY TOUSSAINT, JJ
2018-1649 K C
against
Travelers Home and Marine Ins. Co., Appellant.
Law Offices of Aloy O. Ibuzor (Michael Rappaport of counsel), for appellant. Gary Tsirelman, P.C. (Jung Pryjma 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 June 4, 2018. The order, insofar as appealed from and as limited by the brief, denied defendant’s 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, defendant appeals, as limited by the brief, from so much an order of the Civil Court as denied defendant’s motion which had sought summary judgment dismissing the complaint upon the ground that plaintiff’s assignor had procured the insurance policy in question by making a material misrepresentation as to the ownership and use of the vehicle in question.
“A misrepresentation is material if the insurer would not have issued the policy had it known the facts misrepresented. To establish materiality as a matter of law, the insurer must present documentation concerning its underwriting practices, such as underwriting manuals, bulletins, or rules pertaining to similar risks, that show that it would not have issued the same policy if the correct information had been disclosed in the application” (Interboro Ins. Co. v Fatmir, 89 AD3d 993, 994 [2011] [internal quotation marks and citations omitted]).
Upon a review of the record, we find that defendant failed to establish as a matter of law that it would not have issued the policy in question. Consequently, defendant did not demonstrate, prima facie, that the misrepresentation by plaintiff’s assignor was material (see Commitment Care, P.T., P.C. v Travelers Home & Mar. Ins. Co., 64 Misc 3d 136[A], 2019 NY Slip Op 51157[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]).
Accordingly, the order, insofar as appealed from, is affirmed.
ALIOTTA, P.J., ELLIOT and TOUSSAINT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: August 28, 2020
Reported in New York Official Reports at Psychology YME, P.C. v Global Liberty Ins. Co. of N.Y. (2020 NY Slip Op 50992(U))
| Psychology YME, P.C. v Global Liberty Ins. Co. of N.Y. |
| 2020 NY Slip Op 50992(U) [68 Misc 3d 131(A)] |
| Decided on August 28, 2020 |
| 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 August 28, 2020
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : THOMAS P. ALIOTTA, P.J., DAVID ELLIOT, WAVNY TOUSSAINT, JJ
2018-1624 K C
against
Global Liberty Ins. Co. of N.Y., Respondent.
Gary Tsirelman, P.C. (Darya Klein of counsel), for appellant. Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum, Esq.), for respondent (no brief filed).
Appeal from an order of the Civil Court of the City of New York, Kings County (Odessa Kennedy, J.), entered May 16, 2018. 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 on the ground that plaintiff’s assignor had failed to appear for duly scheduled examinations under oath (EUOs).
Contrary to plaintiff’s contention, defendant established as a matter of law that, as to the claim at issue, defendant “twice duly demanded an [EUO] from the [provider’s] assignor, who had allegedly been injured in a motor vehicle accident, that the assignor twice failed to appear, and that the [insurer] issued a timely denial of the claim[ ]” (Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2014]). As a result, since appearance at a duly demanded EUO “is a condition precedent to the insurer’s liability on the policy” (Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 722 [2006]), contrary to plaintiff’s contention, defendant established its entitlement to summary judgment. Plaintiff’s remaining contentions are raised for the first time on appeal and, in any event, lack merit.
Accordingly, the order is affirmed.
ALIOTTA, P.J., ELLIOT and TOUSSAINT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: August 28, 2020