Allstate Ins. Co. v Gandron (2019 NY Slip Op 50562(U))

Reported in New York Official Reports at Allstate Ins. Co. v Gandron (2019 NY Slip Op 50562(U))

Allstate Ins. Co. v Gandron (2019 NY Slip Op 50562(U)) [*1]
Allstate Ins. Co. v Gandron
2019 NY Slip Op 50562(U) [63 Misc 3d 138(A)]
Decided on April 17, 2019
Appellate Term, First 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This opinion is uncorrected and will not be published in the printed Official Reports.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 April 17, 2019

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Shulman, P.J., Ling-Cohan, Edmead, JJ.
570364/18
Allstate Insurance Company, Petitioner-Respondent,

against

Deborah Gandron, Respondent-Appellant.

Respondent appeals from an order of the Civil Court of the City of New York, New York County (Leticia M. Ramirez, J.), entered March 23, 2018, which granted the petition of Allstate Insurance Company to vacate a master arbitrator’s award and reinstated the original arbitrator’s award in favor of petitioner.

Per Curiam.

Order (Leticia M. Ramirez, J.), entered March 23, 2018, reversed, without costs, petition denied and the award of the master arbitrator is reinstated.

Civil Court erred in vacating the master arbitrator’s award on the ground of misconduct (see CPLR 7511[b][1]). The master arbitrator’s measured response to the self-represented respondent-appellant’s apparently unsolicited communication, wherein the master arbitrator, inter alia, directed appellant to serve a copy of her communication upon petitioner Allstate, and indicated that respondent “would be well advised to retain an attorney to advise you of what your rights and chances are,” did not rise to the level of misconduct so as to warrant vacatur of the arbitration award (see Matter of Travelers Ins. Co. v Job, 239 AD2d 289, 289—90 [1997]; cf. Matter of Goldfinger v Lisker, 68 NY2d 225, 227-228 [1986] [“private communication between the arbitrator and one party-litigant, which related to the credibility of the party-litigant and the validity of the amount in dispute, and occurred without the knowledge or consent of the other party-litigant, constitutes misconduct sufficient to warrant vacating the arbitration award”]).

Nor did the master arbitrator exceed his authority, and his determination that there were factual issues concerning whether Allstate complied with the relevant no-fault regulations (see American Tr. Ins. Co. v Clark, 131 AD3d 840 [2015]; 11 NYCRR § 65-3.6[b]) and whether respondent’s nonappearance for a scheduled independent medical examination was excusable (cf. Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 7 Misc 3d 18 [App Term, 2d Dept 2004] affd 35 AD3d 720 [2006]), was not irrational.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.


I concur I concur I concur
Decision Date: April 17, 2019
Matter of Global Liberty Ins. Co. v Medco Tech, Inc. (2019 NY Slip Op 02167)

Reported in New York Official Reports at Matter of Global Liberty Ins. Co. v Medco Tech, Inc. (2019 NY Slip Op 02167)

Matter of Global Liberty Ins. Co. v Medco Tech, Inc. (2019 NY Slip Op 02167)
Matter of Global Liberty Ins. Co. v Medco Tech, Inc.
2019 NY Slip Op 02167 [170 AD3d 558]
March 21, 2019
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, May 1, 2019

[*1]

 In the Matter of Global Liberty Insurance Company, Appellant,
v
Medco Tech, Inc., as Assignee of Coreen Josiah, Respondent.

Law Office of Jason Tenenbaum, P.C., Garden City (Jason Tenenbaum of counsel), for appellant.

Israel, Israel & Purdy, LLP, Great Neck (William M. Purdy of counsel), for respondent.

Judgment, Supreme Court, Bronx County (Julia I. Rodriguez, J.), entered August 29, 2016, against petitioner in favor of respondent, and bringing up for review an order, same court and Justice, entered January 12, 2016, which denied petitioner’s motion to vacate an arbitral award and remand to the lower arbitrator for a de novo hearing, and granted respondent’s motion to confirm the award, unanimously reversed, on the law, without costs, the judgment vacated, petitioner’s motion granted, and respondent’s motion denied.

Respondent seeks from petitioner no-fault insurance benefits for medical equipment that respondent provided to its assignor, who was involved in a motor vehicle accident. In denying respondent’s claim, petitioner relied on a peer review report that concluded, based on a review of the medical records, that the assignor’s condition was degenerative in nature and not post-traumatic and therefore that the surgery undergone by the assignor was “not medically necessary in relation to the accident” (emphasis supplied). The arbitral award must be vacated and a de novo hearing held, because, on the record before us, as argued, it would be irrational to conclude that the need for the subject medical equipment was causally related to the accident (see Matter of Smith [Firemen’s Ins. Co.], 55 NY2d 224, 232 [1982]; Mount Sinai Hosp. v Triboro Coach, 263 AD2d 11, 18-19 [2d Dept 1999]; Shahid Mian, M.D., P.C. v Interboro Ins. Co., 39 Misc 3d 135[A], 2013 NY Slip Op 50589[U] [App Term, 1st Dept 2013]). Concur—Friedman, J.P., Renwick, Webber, Kahn, Kern, JJ.

Country-Wide Ins. Co. v Yao Jian Ping (2019 NY Slip Op 50160(U))

Reported in New York Official Reports at Country-Wide Ins. Co. v Yao Jian Ping (2019 NY Slip Op 50160(U))

Country-Wide Ins. Co. v Yao Jian Ping (2019 NY Slip Op 50160(U)) [*1]
Country-Wide Ins. Co. v Yao Jian Ping
2019 NY Slip Op 50160(U) [62 Misc 3d 144(A)]
Decided on February 13, 2019
Appellate Term, First 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 February 13, 2019

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Ling-Cohan, J.P., Gonzalez, Cooper, JJ.
570448/18
Country-Wide Insurance Company, Plaintiff-Respondent,

against

Yao Jian Ping, Defendant-Appellant.

Defendant appeals from an order of the Civil Court of the City of New York, New York County (Mary V. Rosado, J.), dated June 13, 2018, which denied his motion to dismiss the action and for related relief.

Per Curiam.

Order (Mary V. Rosado), dated June 13, 2018, affirmed, with $10 costs.

This action, seeking a de novo adjudication of a no-fault insurance claim following a master arbitrator’s award in excess of $5,000 (see Insurance Law § 5106[c]), was properly commenced in Civil Court, since the amount in dispute did not exceed $25,000 (see CCA 212-a; Imperium Ins. Co. v Innovative Chiropractic Servs., P.C., 43 Misc 3d 137[A], 2014 NY Slip Op 50697[U] [App Term, 1st Dept 2014]; Brooks v Rivera, 40 Misc 3d 133[A], 2013 NY Slip Op 51191[U] [App Term, 1st Dept 2013]).

In light of our disposition, defendant’s remaining argument has been rendered academic.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.


I concur I concur I concur
Decision Date: February 13, 2019
Sunrise Acupuncture PC v Global Liberty Ins. Co. of N.Y. (2018 NY Slip Op 51887(U))

Reported in New York Official Reports at Sunrise Acupuncture PC v Global Liberty Ins. Co. of N.Y. (2018 NY Slip Op 51887(U))

Sunrise Acupuncture PC v Global Liberty Ins. Co. of N.Y. (2018 NY Slip Op 51887(U)) [*1]
Sunrise Acupuncture PC v Global Liberty Ins. Co. of N.Y.
2018 NY Slip Op 51887(U) [62 Misc 3d 129(A)]
Decided on December 20, 2018
Appellate Term, First 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 December 20, 2018

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Ling-Cohan, J.P., Gonzalez, Cooper, JJ.
18-343/344
Sunrise Acupuncture PC a/a/o Luis Suero, Plaintiff-Respondent,

against

Global Liberty Insurance Company of New York, Defendant-Appellant.

Defendant appeals from two judgments of the Civil Court of the City of New York, Bronx County (Marian C. Doherty, J.), entered April 19, 2018, after a consolidated nonjury trial, in favor of plaintiff and awarding it damages in the principal amounts of $861.32 and $593.77, respectively.

Per Curiam.

Judgments (Marian C. Doherty, J.), entered April 19, 2018, affirmed, with one bill of $25 costs.

The trial court properly denied defendant-insurer’s belated attempt to invoke the primary jurisdiction of the Workers’ Compensation Board [WCB] in these consolidated first-party no-fault actions. Other than asserting the workers’ compensation statute as one of eighteen affirmative defenses in its respective May 2011 answers, defendant did not otherwise raise or pursue the workers’ compensation issue during the course of the litigation, and indeed, only raised the issue at trial, nearly seven years later. Under these particular circumstances, defendant “may not, at this belated juncture, invoke the primary jurisdiction of the WCB as a means of further delaying the litigation” (Sangare v Edwards, 91 AD3d 513, 515 [2012]; see Ovenseri v St. Barnabas Hosp., 94 AD3d 495 [2012]; Bastidas v Epic Realty, LLC, 58 AD3d 776, 777 [2009]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.


I concur I concur I concur

Decision Date: December 20, 2018

Matter of Country-Wide Ins. Co. v Bay Needle Acupuncture, P.C. (2018 NY Slip Op 08238)

Reported in New York Official Reports at Matter of Country-Wide Ins. Co. v Bay Needle Acupuncture, P.C. (2018 NY Slip Op 08238)

Matter of Country-Wide Ins. Co. v Bay Needle Acupuncture, P.C. (2018 NY Slip Op 08238)
Matter of Country-Wide Ins. Co. v Bay Needle Acupuncture, P.C.
2018 NY Slip Op 08238 [167 AD3d 404]
December 4, 2018
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, January 30, 2019

[*1]

 In the Matter of Country-Wide Insurance Company, Appellant,
v
Bay Needle Acupuncture, P.C., as Assignee of Jasmine Walker, Respondent.

Thomas Torto, New York (Jason Levine of counsel), for appellant.

Gary Tsirelman, P.C., Brooklyn (Gary Tsirelman of counsel), for respondent.

Judgment, Supreme Court, New York County (Arlene P. Bluth, J.), entered June 5, 2017, in favor of respondent, unanimously affirmed, with costs, and the matter is remanded to Supreme Court for a determination of respondent’s reasonable attorneys’ fees for this appeal.

Petitioner failed to demonstrate that the arbitration award underlying the judgment was irrational and incorrect as a matter of law and that therefore the master arbitrator exceeded his power in affirming it (see CPLR 7511 [b] [1] [iii]). Petitioner’s primary argument is that the no-fault arbitrator’s refusal to accept its untimely opposition papers asserting a Mallela defense (State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]) was irrational and incorrect because such a defense may not be waived or precluded on the ground of untimeliness (see Matter of Acuhealth Acupuncture, P.C. v Country-Wide Ins. Co., 149 AD3d 828 [2d Dept 2017]). We reject this argument.

We find that petitioner’s defense is not a Mallela defense. It is based on the guilty plea of Andrey Anikeyev, who, according to petitioner, is respondent’s “de facto owner,” to conspiracy to commit health care fraud and mail fraud. Anikeyev pleaded guilty to billing insurance companies “for health care services for time periods in excess of the actual time period the patient spent with [the] acupuncturist.” This plea supports nothing more than “a defense that the billed-for services were never rendered,” which is “more like a ‘normal’ exception from coverage (e.g., a policy exclusion) [than] a lack of coverage in the first instance” (Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556, 565 [2008]), and therefore does not fall into the “settled law recognizing a narrow exception to the 30-day deadline for defenses based on lack of coverage” (Matter of MVAIC v Interboro Med. Care & Diagnostic PC, 73 AD3d 667, 667 [1st Dept 2010] [citation omitted]).

Petitioner failed to present any evidence that respondent was improperly or fraudulently incorporated. In fact, there is no evidence in this record that Andrey Anikeyev was the owner of respondent so that his actions could be imputed to respondent. In any event, Anikeyev’s guilty plea does not amount to an admission of improper incorporation.

Respondent is entitled to reasonable attorneys’ fees for this appeal, to be determined by [*2]Supreme Court (11 NYCRR 65-4.10 [j] [4]; see Matter of Country-Wide Ins. Co. v Bay Needle Care Acupuncture, P.C., 162 AD3d 407 [1st Dept 2018]).

We have considered petitioner’s remaining arguments and find them unavailing. Concur—Acosta, P.J., Renwick, Mazzarelli, Gesmer, Singh, JJ.

Healthy Way Acupuncture PC v Global Liberty Ins. Co. of N.Y. (2018 NY Slip Op 51709(U))

Reported in New York Official Reports at Healthy Way Acupuncture PC v Global Liberty Ins. Co. of N.Y. (2018 NY Slip Op 51709(U))

Healthy Way Acupuncture PC v Global Liberty Ins. Co. of N.Y. (2018 NY Slip Op 51709(U)) [*1]
Healthy Way Acupuncture PC v Global Liberty Ins. Co. of N.Y.
2018 NY Slip Op 51709(U) [61 Misc 3d 147(A)]
Decided on November 29, 2018
Appellate Term, First 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 29, 2018

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Shulman, P.J., Cooper, Edmead, JJ.
570381/18
Healthy Way Acupuncture PC, a/a/o Awilda Santiago, Plaintiff-Respondent,

against

Global Liberty Insurance Company of New York, Defendant-Appellant.

Defendant, as limited by its brief, appeals from so much of an order of the Civil Court of the City of New York, New York County (Debra Rose Samuels, J.), entered June 1, 2018, as denied, in part, its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Debra Rose Samuels, J.), entered June 1, 2018, insofar as appealed, affirmed, with $10 costs.

This action, seeking recovery of assigned first-party no-fault benefits, is not ripe for summary disposition. Defendant’s conflicting and contradictory submissions, regarding the amount it purportedly paid on the claims and when, create rather than eliminate triable issues as to whether the claims were timely and properly denied in accordance with the applicable fee schedules (see Lotus Acupuncture PC v Hereford Ins. Co., 58 Misc 3d 148[A], 2018 NY Slip Op 50057[U] [App Term 1st Dept 2018]; Healthy Way Acupuncture, P.C. v Clarendon Natl. Ins. Co., 55 Misc 3d 127[A], 2017 NY Slip Op 50345[U] [App Term, 1st Dept 2017]; Devonshire Surgical Facility, LLC v Allstate Ins. Co., 38 Misc 3d 127[A], 2012 NY Slip Op 52351[U] [App Term, 1st Dept 2012]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.


I concur I concur I concur
Decision Date: November 29, 2018
Forest Drugs v Global Liberty Ins. Co. of N.Y. (2018 NY Slip Op 51708(U))

Reported in New York Official Reports at Forest Drugs v Global Liberty Ins. Co. of N.Y. (2018 NY Slip Op 51708(U))

Forest Drugs v Global Liberty Ins. Co. of N.Y. (2018 NY Slip Op 51708(U)) [*1]
Forest Drugs v Global Liberty Ins. Co. of N.Y.
2018 NY Slip Op 51708(U) [61 Misc 3d 147(A)]
Decided on November 29, 2018
Appellate Term, First 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 29, 2018

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Shulman, P.J., Cooper, Edmead, JJ.
570131/18
Forest Drugs a/a/o Uddin Kamar, Plaintiff-Respondent,

against

Global Liberty Insurance Company of New York, Defendant-Appellant.

Defendant appeals from so much of an order of the Civil Court of the City of New York, New York County (Joan M. Kenney, J.), entered December 18, 2017, that denied, in part, its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Joan M. Kenney, J.), entered December 18, 2017, insofar as appealed from, reversed, with $10 costs, motion granted in its entirety, and the complaint dismissed. The Clerk is directed to enter judgment accordingly.

The defendant-insurer made a prima facie showing of entitlement to judgment as a matter of law by demonstrating that it timely denied plaintiff’s first-party no-fault claims based on an affirmed independent examination report [IME] of its examining orthopedist, which set forth a factual basis and medical rationale for his stated conclusion that the assignor’s injuries were resolved and that there was no need for further treatment (see Mingmen Acupuncture Servs., PC v Global Liberty Ins. Co. of NY, 61 Misc 3d 128[A], 2018 NY Slip Op 51358[U] [App Term, 1st Dept 2018]; Rummel G. Mendoza, D.C., P.C. v Chubb Indem. Ins. Co., 47 Misc 3d 156[A], 2015 NY Slip Op 50900[U][App Term, 1st Dept 2015]).

In opposition, the medical affirmation submitted by plaintiff failed to raise a triable issue since it was not based on an examination of the assignor, nor did it meaningfully rebut the findings of defendant’s examining physician (see Arnica Acupuncture PC v Interboard Ins. Co., 137 AD3d 421 [2016]; Rummel G. Mendoza, D.C., P.C. v Chubb Indem. Ins. Co., 47 Misc 3d 156[A]). Nor did the assignor’s subjective complaints of pain overcome the objective medical tests detailed in the IME report (see Arnica Acupuncture PC v Interboard Ins. Co., 137 AD3d 421).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.


I concur I concur I concur
Decision Date: November 29, 2018
Mingmen Acupuncture Servs., PC v Global Liberty Ins. Co. of N.Y. (2018 NY Slip Op 51358(U))

Reported in New York Official Reports at Mingmen Acupuncture Servs., PC v Global Liberty Ins. Co. of N.Y. (2018 NY Slip Op 51358(U))

Mingmen Acupuncture Services, PC, a/a/o Sergio Castelan, Plaintiff-Respondent,

against

Global Liberty Insurance Company of New York, Defendant-Appellant.

Defendant, as limited by its brief, appeals from so much of an order of the Civil Court of the City of New York, New York County (Debra Rose Samuels, J.), entered September 28, 2017, as denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Debra Rose Samuels, J.), entered September 28, 2017, insofar as appealed from, reversed, with $10 costs, motion granted, and the complaint dismissed. The Clerk is directed to enter judgment accordingly.

The defendant-insurer made a prima facie showing of entitlement to judgment as a matter of law by demonstrating that it timely denied plaintiff’s first-party no-fault claims based on a sworn independent examination report [IME] of its examining acupuncturist/chiropractor, which set forth a factual basis and medical rationale for her stated conclusion that the assignor’s injuries were resolved and that there was no need for further acupuncture treatment (see Rummel G. Mendoza, D.C., P.C. v Chubb Indem. Ins. Co., 47 Misc 3d 156[A], 2015 NY Slip Op 50900[U][App Term, 1st Dept 2015]); Utica Acupuncture, P.C. v Interboro Ins. Co., 39 Misc 3d 139[A], 2013 NY Slip Op 50643[U] [App Term, 1st Dept 2013]).

In opposition, the affidavit of plaintiff’s principal failed to raise a triable issue since it was not based on an examination of the assignor, nor did it meaningfully rebut the findings of defendant’s examining acupuncturist/chiropractor, including the normal results of the range of motion testing (see Arnica Acupuncture PC v Interboard Ins. Co., 137 AD3d 421 [2016]; Rummel G. Mendoza, D.C., P.C. v Chubb Indem. Ins. Co., 47 Misc 3d 156[A]). Nor did the assignor’s subjective complaints of pain overcome the objective medical tests detailed in the IME report (see Arnica Acupuncture PC v Interboard Ins. Co., 137 AD3d 421; TC Acupuncture, P.C. v Tri-State Consumer Ins. Co., 52 Misc 3d 131[A], 2016 NY Slip Op 50978[U] [App Term, 1st Dept 2016]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.


I concur I concur I concur
Decision Date: September 26, 2018
Village Med. Supply, Inc. v Travelers Prop. Cas. Ins. Co. (2018 NY Slip Op 51311(U))

Reported in New York Official Reports at Village Med. Supply, Inc. v Travelers Prop. Cas. Ins. Co. (2018 NY Slip Op 51311(U))

Village Med. Supply, Inc. v Travelers Prop. Cas. Ins. Co. (2018 NY Slip Op 51311(U)) [*1]
Village Med. Supply, Inc. v Travelers Prop. Cas. Ins. Co.
2018 NY Slip Op 51311(U) [61 Misc 3d 126(A)]
Decided on September 17, 2018
Appellate Term, First 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 September 17, 2018

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Shulman, P.J., Cooper, Edmead, JJ.
570014/18
Village Medical Supply, Inc. a/a/o Cindy Caspata, Plaintiff-Respondent,

against

Travelers Property Casualty Insurance Company, Defendant-Appellant.

Defendant, as limited by its brief, appeals from an order of the Civil Court of the City of New York, New York County (Erika M. Edwards, J.), entered June 1, 2016, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Erika M. Edwards, J.), entered June 1, 2016, reversed, with $10 costs, motion granted and complaint dismissed. The Clerk is directed to enter judgment accordingly.

Defendant-insurer established its prima facie entitlement to summary judgment dismissing the underlying first-party no-fault claims as premature, since the record conclusively establishes that plaintiff failed to respond to timely requests for verification (see St. Vincent Med. Care, P.C. v. Country Wide Ins. Co., 80 AD3d 599, 600 [2011]). No triable issue was raised by plaintiff’s claim that defendant had no “good reason” (11 NYCRR 65-3.2[c]) for its verification request for a manufacturer’s invoice documenting the cost of the supplies provided to the assignor (see New Way Med. Supply Corp. v State Farm Mut. Auto Ins. Co., 56 Misc 3d 132[A], 2017 NY Slip Op 50925[U] [App Term 2d, 11th and 13th Jud Dists 2017]; see also 12 NYCRR 442.2[a]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.


I concur I concur I concur
Decision Date: September 17, 2018
Village Med. Supply, Inc. v Hereford Ins. Co. (2018 NY Slip Op 51014(U))

Reported in New York Official Reports at Village Med. Supply, Inc. v Hereford Ins. Co. (2018 NY Slip Op 51014(U))

Village Med. Supply, Inc. v Hereford Ins. Co. (2018 NY Slip Op 51014(U)) [*1]
Village Med. Supply, Inc. v Hereford Ins. Co.
2018 NY Slip Op 51014(U) [60 Misc 3d 132(A)]
Decided on June 28, 2018
Appellate Term, First 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 June 28, 2018

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Ling-Cohan, J.P., Cooper, Edmead, JJ.
570034/18
Village Medical Supply, Inc. a/a/o Kamilah Thompson, Plaintiff-Appellant,

against

Hereford Ins. Co., Defendant-Respondent.

Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Joseph E. Capella, J.), entered June 12, 2013, which granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross-motion for summary judgment.

Per Curiam.

Order (Joseph E. Capella, J.), entered June 12, 2013, affirmed, with $10 costs.

The defendant-insurer made a prima facie showing of entitlement to summary judgment dismissing the action for first-party no-fault benefits by establishing that it timely and properly mailed the notices for examinations under oath [EUOs] to plaintiff’s assignor and that the assignor failed to appear at the two scheduled EUOs (see Allstate Ins. Co. v Pierre, 123 AD3d 618 [2014]; Hertz Corp. v Active Care Med. Supply Corp., 124 AD3d 411 [2015]). Contrary to plaintiff’s contention, defendant submitted competent evidence of the assignor’s nonappearance in the form of the affidavit of defendant’s employee who was responsible for the scheduling of the EUOs, setting forth sufficient facts to demonstrate the affiant’s personal knowledge of the assignor’s repeated failure to appear for the EUOs and the office practices and policies when an assignor fails to appear for a scheduled IME (see Hereford Ins. Co. v Lida’s Med. Supply, Inc.,— AD3d &mdash, 2018 NY Slip Op 03226 [1st Dept 2018]; American Tr. Ins. Co. v Solorzano, 108 AD3d 449 [2013]).

In opposition to defendant’s prima facie showing, plaintiff did not specifically deny the assignor’s nonappearance at the scheduled EUOs, or otherwise raise a triable issue with respect thereto, or as to the mailing or reasonableness of the underlying notices (see American Tr. Ins. Co. v Marte-Rosario, 111 AD3d 442 [2013]).


THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur I concur I concur
Decision Date: June 28, 2018