Reported in New York Official Reports at New York Infinity Health Care, LCSW, P.C. v Global Liberty Ins. Co. of N.Y. (2019 NY Slip Op 50278(U))
| New York Infinity Health Care, LCSW, P.C. v Global Liberty Ins. Co. of N.Y. |
| 2019 NY Slip Op 50278(U) [62 Misc 3d 150(A)] |
| Decided on March 8, 2019 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 8, 2019
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, BERNICE D. SIEGAL, JJ
2016-2227 K C
against
Global Liberty Insurance Company of New York, Appellant.
Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum of counsel), for appellant. Petre and Zabokritsky, P.C., for respondent (no brief filed).
Appeal from an order of the Civil Court of the City of New York, Kings County (Steven Z. Mostofsky, J.), entered August 17, 2016. The order denied defendant’s motion to sever the first cause of action seeking to recover upon a claim for services rendered to Shavkat Djalilov from the remaining causes of action.
ORDERED that the order is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court which denied defendant’s motion, which had sought, pursuant to CPLR 603, to sever the first cause of action seeking to recover upon a claim for services rendered to Shavkat Djalilov from the remaining causes of action. Defendant’s counsel asserted that the causes of action had arisen out of five accidents and that multiple defenses had been interposed in the answer. The Civil Court denied defendant’s motion.
For the reasons stated in Himalayans Acupuncture, P.C., as Assignee of Davron Khuseynov, et al. v Global Liberty Ins. Co. of NY (___ Misc 3d ___, 2019 NY Slip Op _____ [appeal No. 2016-2225 K C], decided herewith), the order is affirmed.
PESCE, P.J., ALIOTTA and SIEGAL, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: March 08, 2019
Reported in New York Official Reports at Unique Physical Rehab, PT, P.C. v Global Liberty Ins. Co. of N.Y. (2019 NY Slip Op 50277(U))
| Unique Physical Rehab, PT, P.C. v Global Liberty Ins. Co. of N.Y. |
| 2019 NY Slip Op 50277(U) [62 Misc 3d 150(A)] |
| Decided on March 8, 2019 |
| 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 8, 2019
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, BERNICE D. SIEGAL, JJ
2016-2226 K C
against
Global Liberty Insurance Company of New York, Appellant.
Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum of counsel), for appellant. Petre and Zabokritsky, P.C., for respondent (no brief filed).
Appeal from an order of the Civil Court of the City of New York, Kings County (Steven Z. Mostofsky, J.), entered August 17, 2016. The order, insofar as appealed from as limited by the brief, denied defendant’s motion to sever the first cause of action seeking to recover upon a claim for services rendered to Victor Agnest from the remaining causes of action.
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 of an order of the Civil Court as denied defendant’s motion, which had sought, pursuant to CPLR 603, to sever the first cause of action seeking to recover upon a claim for services rendered to Victor Agnest from the remaining causes of action. Defendant’s counsel asserted that the causes of action had arisen out of four accidents and that multiple defenses had been interposed in the answer. The Civil Court denied defendant’s motion.
For the reasons stated in Himalayans Acupuncture, P.C., as Assignee of Davron Khuseynov, et al. v Global Liberty Ins. Co. of NY (___ Misc 3d ___, 2019 NY Slip Op _____ [appeal No. 2016-2225 K C], decided herewith), the order, insofar as appealed from, is affirmed.
PESCE, P.J., ALIOTTA and SIEGAL, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: March 08, 2019
Reported in New York Official Reports at Himalayans Acupuncture, P.C. v Global Liberty Ins. Co. of N.Y. (2019 NY Slip Op 50276(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
Global Liberty Insurance Company of New York, Appellant.
Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum of counsel), for appellant. Petre and Zabokritsky, P.C., for respondent (no brief filed).
Appeal from an order of the Civil Court of the City of New York, Kings County (Steven Z. Mostofsky, J.), entered August 17, 2016. The order, insofar as appealed from as limited by the brief, denied defendant’s motion to sever the first cause of action seeking to recover upon a claim for services rendered to Davron Khuseynov from the remaining causes of action.
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 of an order of the Civil Court as denied defendant’s motion, which had sought, pursuant to CPLR 603, to sever the first cause of action seeking to recover upon a claim for services rendered to Davron Khuseynov from the remaining causes of action. Defendant’s counsel asserted that the causes of action had arisen out of two accidents and that multiple defenses had been interposed in the answer. The Civil Court denied defendant’s motion.
The decision to grant severance (see CPLR 603) is an exercise of judicial discretion which, in the absence of a party’s showing of prejudice to a substantial right, should not be disturbed on appeal (see City Chiropractic, P.C. v Auto One Ins. Co., 59 Misc 3d 144[A], 2018 NY Slip Op 50730[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]; King’s Med. Supply, Inc. v GEICO Cas. Ins. Co., 14 Misc 3d 136[A], 2007 NY Slip Op 50232[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2007]). In the instant matter, while the assignors were injured in separate accidents and defendant interposed 48 defenses in its answer, these two facts do not [*2]demonstrate that resolution of the claims for services rendered to each assignor will involve different questions of law and fact. As such, the record does not establish that the Civil Court’s denial of defendant’s motion was an improvident exercise of discretion.
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 08, 2019
Reported in New York Official Reports at Parisien v 21st Century Ins. Co. (2019 NY Slip Op 50275(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
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, Kings County (Robin Kelly Sheares, J.), entered May 11, 2016. The order, insofar as appealed from, denied the branches of plaintiff’s motion seeking summary judgment on the second through fifth causes of action and granted the branches of defendant’s cross motion seeking summary judgment dismissing those causes of action.
ORDERED that the order, insofar as appealed from, is modified by providing that the branches of defendant’s cross motion seeking summary judgment dismissing the second and fifth causes of action are denied; as so modified, the order is affirmed, without 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. Insofar as is relevant to this appeal, the Civil Court granted the branches of defendant’s cross motion seeking summary judgment dismissing: (1) the second cause of action on the ground that defendant had never received the underlying claim form; (2) the third cause of action on the ground that defendant had fully paid plaintiff in accordance with the workers’ compensation fee schedule; and (3) the fourth and fifth causes of action on the ground that plaintiff had failed to appear for examinations under oath (EUOs). The Civil Court also denied the branches of plaintiff’s motion seeking summary judgment on those causes of action.
Plaintiff correctly argues that it made a prima facie showing that the claim underlying the second cause of action had been mailed to defendant in accordance with plaintiff’s standard [*2]mailing practice and procedure (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). However, defendant’s showing that it had not received the claim form at issue underlying the second cause of action demonstrated that there is a triable issue of fact as to whether this claim form was timely mailed to defendant (see Irina Acupuncture, P.C. v Auto One Ins. Co., 59 Misc 3d 147[A], 2018 NY Slip Op 50781[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]; Healing Health Prods., Inc. v New York Cent. Mut. Fire Ins. Co., 44 Misc 3d 59 [App Term, 2d, Dept, 2d, 11th & 13th Jud Dists 2014]). As a result, neither party is entitled to summary judgment upon the second cause of action.
Plaintiff’s contention that defendant is not entitled to summary judgment upon the third cause of action will not be considered, as it is being raised for the first time on appeal (see Joe v Upper Room Ministries, Inc., 88 AD3d 963 [2011]; Gulf Ins. Co. v Kanen, 13 AD3d 579 [2004]).
Plaintiff argues that defendant was not entitled to summary judgment upon the fourth and fifth causes of action because the follow-up EUO scheduling letters were sent more than 10 calendar days after plaintiff had failed to appear for separately scheduled EUOs with respect to the claims underlying the fourth and fifth causes of action. The record establishes that, with respect to the claim underlying the fourth cause of action, after plaintiff failed to appear for the first scheduled EUO, defendant timely mailed a second EUO scheduling letter (see 11 NYCRR 65-3.6 [b]).
However, with respect to the claim underlying the fifth cause of action, the record establishes that, after plaintiff failed to appear for the first scheduled EUO, defendant’s follow-up scheduling letter for that EUO was mailed more than 10 days later. As a result, this follow-up scheduling letter was untimely (see 11 NYCRR 65-3.6 [b]) and the branch of defendant’s cross motion seeking summary judgment dismissing the fifth cause of action due to plaintiff’s failure to appear for EUOs should have been denied. However, the branch of plaintiff’s motion seeking summary judgment upon this cause of action was properly denied, as the proof submitted in support of plaintiff’s motion failed to establish either that the claim had not been timely denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant had issued a timely denial that was conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).
Accordingly, the order, insofar as appealed from, is modified by providing that the branches of defendant’s cross motion seeking summary judgment dismissing the second and fifth causes of action are denied.
PESCE, P.J., ALIOTTA and SIEGAL, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: March 08, 2019
Reported in New York Official Reports at Fu-Qi Acupuncture, P.C. v Travelers Ins. Co. (2019 NY Slip Op 50273(U))
| Fu-Qi Acupuncture, P.C. v Travelers Ins. Co. |
| 2019 NY Slip Op 50273(U) [62 Misc 3d 150(A)] |
| Decided on March 8, 2019 |
| 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 8, 2019
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, BERNICE D. SIEGAL, JJ
2016-301 K C
against
Travelers Insurance Company, Appellant.
Law Offices of Aloy O. Ibuzor (William P. Kleen of counsel), for appellant. Law Office of Melissa Betancourt, P.C. (Melissa Betancourt of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered January 22, 2016. The order denied defendant’s motion to vacate a notice of trial and certificate of readiness.
ORDERED that the order is reversed, with $30 costs, and defendant’s motion to vacate the notice of trial and certificate of readiness is granted.
In this action by a provider to recover assigned first-party no-fault benefits, defendant’s answer, served in January 2015, was accompanied by a notice to take deposition upon oral examination. After plaintiff served a notice of trial and certificate of readiness in February 2015, defendant moved to vacate same, asserting that, contrary to plaintiff’s representation, discovery was not complete. The Civil Court denied defendant’s unopposed motion.
Defendant’s timely motion to vacate the notice of trial (see Uniform Rules for NY City Civ Ct [22 NYCRR] § 208.17 [c]) should have been granted since it was based upon a certificate of readiness which contained the erroneous statement that discovery was complete or that it had been waived (see Savino v Lewittes, 160 AD2d 176 [1990]; Queens Chiropractic Mgt., P.C. v Country Wide Ins. Co., 23 Misc 3d 142[A], 2009 NY Slip Op 51073[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]). As it is undisputed that plaintiff never appeared for a deposition in this action despite being served with a notice to take deposition upon oral examination, the notice of trial and certificate of readiness should be vacated (see Queens Chiropractic Mgt., P.C., 23 Misc 3d 142[A], 2009 NY Slip Op 51073[U]).
Accordingly, the order is reversed and defendant’s motion to vacate the notice of trial and certificate of readiness is granted.
PESCE, P.J., ALIOTTA and SIEGAL, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: March 08, 2019
Reported in New York Official Reports at Fu-Qi Acupuncture, P.C. v Travelers Ins. Co. (2019 NY Slip Op 50272(U))
| Fu-Qi Acupuncture, P.C. v Travelers Ins. Co. |
| 2019 NY Slip Op 50272(U) [62 Misc 3d 149(A)] |
| Decided on March 8, 2019 |
| 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 8, 2019
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, BERNICE D. SIEGAL, JJ
2016-300 K C
against
Travelers Insurance Company, Appellant.
Law Office of Aloy O. Ibuzor (William P. Kleen of counsel), for appellant. Law Offices of Melissa Betancourt, P.C. (Melissa Betancourt of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered January 22, 2016. The order denied defendant’s motion to vacate a notice of trial and certificate of readiness.
ORDERED that the order is reversed, with $30 costs, and defendant’s motion to vacate the notice of trial and certificate of readiness is granted.
In this action by a provider to recover assigned first-party no-fault benefits, defendant’s answer, served in January 2015, was accompanied by a notice to take deposition upon oral examination. After plaintiff served a notice of trial and certificate of readiness in February 2015, defendant moved to vacate same, asserting that, contrary to plaintiff’s representation, discovery was not complete. The Civil Court denied defendant’s unopposed motion.
For the reasons stated in Fu-Qi Acupuncture, P.C., as Assignee of Gomez, Osiris v Travelers Ins. Co. (__ Misc 3d ___, 2019 NY Slip Op _____ [appeal No. 2016-301 K C], decided herewith), the order is reversed and defendant’s motion to vacate the notice of trial and certificate of readiness is granted.
PESCE, P.J., ALIOTTA and SIEGAL, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: March 08, 2019
Reported in New York Official Reports at Sheepshead Bay Oral Surgery, PLLC v Unitrin Direct Ins. Co. (2019 NY Slip Op 51058(U))
| Sheepshead Bay Oral Surgery, PLLC v Unitrin Direct Ins. Co. |
| 2019 NY Slip Op 51058(U) [64 Misc 3d 132(A)] |
| Decided on March 1, 2019 |
| 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 1, 2019
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, BERNICE D. SIEGAL, JJ
2017-168 K C
against
Unitrin Direct Ins. Co., Appellant.
Rubin, Fiorella & Friedman, LLP (Harlan R. Schreiber 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 (Devin P. Cohen, J.), entered August 24, 2016. The order denied defendant’s motion to dismiss the complaint.
ORDERED that the order is reversed, with $30 costs, and defendant’s motion to dismiss the complaint is granted.
In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court which denied defendant’s motion to dismiss the complaint.
A first-party no-fault cause of action accrues 30 days after the insurer’s receipt of the claim (see Insurance Law § 5106 [a]; 11 NYCRR 65-3.8; DJS Med. Supplies, Inc. v Clarendon Natl. Ins. Co., 32 Misc 3d 129[A], 2011 NY Slip Op 51304[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]; Kings Highway Diagnostic Imaging, P.C. v MVAIC, 19 Misc 3d 69 [App Term, 2d Dept, 2d & 11th Jud Dists 2008]; Boulevard Multispec Med., P.C. v MVAIC, 19 Misc 3d 138[A], 2008 NY Slip Op 50872[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2008]). The six-year statute of limitations for contract actions is applicable to this cause of action (see CPLR 213 [2]; Mandarino v Travelers Prop. Cas. Ins. Co., 37 AD3d 775 [2007]). As defendant has established that it received all of the claim forms at issue no later than June 6, 2008, plaintiff’s cause of action accrued on July 6, 2008, and this action, which was commenced over six years later, on February 10, 2015, is untimely.
Accordingly, the order is reversed and defendant’s motion to dismiss the complaint is granted.
PESCE, P.J., ALIOTTA and SIEGAL, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: March 01, 2019
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
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
Reported in New York Official Reports at Mag Med., P.C. v Kemper Ins. Co. (2019 NY Slip Op 51051(U))
| Mag Med., P.C. v Kemper Ins. Co. |
| 2019 NY Slip Op 51051(U) [64 Misc 3d 132(A)] |
| Decided on March 1, 2019 |
| 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 1, 2019
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, BERNICE D. SIEGAL, JJ
2016-2627 K C
against
Kemper Insurance Company, Appellant.
Gullo & Associates, LLP (Cristina Carollo of counsel), for appellant. Law Office of Florence Zabokritsky, for respondent (no brief filed).
Appeal from an order of the Civil Court of the City of New York, Kings County (Theresa M. Ciccotto, J.), entered August 1, 2016. The order denied defendant’s motion for summary judgment dismissing the complaint.
ORDERED that the order 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 appeals from an order of the Civil Court which denied defendant’s motion for summary judgment dismissing the complaint.
The evidence submitted by defendant in support of its motion established that defendant had timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) the denial of claim forms at issue, which denied the claims on the ground of lack of medical necessity. Defendant also submitted an affirmed peer review report, which set forth a factual basis and medical rationale for the doctor’s determination that there was a lack of medical necessity for the services at issue. Plaintiff did not submit any medical evidence in opposition to rebut defendant’s prima facie showing. Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is granted (see Lynbrook Med. of NY, P.C. v Praetorian Ins. Co., 48 Misc 3d 139[A], 2015 NY Slip Op 51226[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).
PESCE, P.J., ALIOTTA and SIEGAL, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: March 01, 2019
Reported in New York Official Reports at Oleg’s Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2019 NY Slip Op 51049(U))
| Oleg’s Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. |
| 2019 NY Slip Op 51049(U) [64 Misc 3d 131(A)] |
| Decided on March 1, 2019 |
| 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 1, 2019
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, BERNICE D. SIEGAL, JJ
2016-2132 K C
against
State Farm Mutual Automobile Ins. Co., Appellant.
Rivkin Radler, LLP (Stuart M. Bodoff and Cheryl F. Korman 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 (Katherine A. Levine, J.), entered June 10, 2016. 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). By order entered June 10, 2016, the Civil Court denied the motion, but found, in effect pursuant to CPLR 3212 (g), that defendant had established the timely and proper mailing of the EUO scheduling letters and denial of claim forms, as well as plaintiff’s failure to appear for the EUOs. The Civil Court further found that the only remaining issues for trial were plaintiff’s prima facie case and “an issue of fact regarding the discrepancy between the person stated to be the contact for defense counsel in the EUO request letters and the person signing the affirmation regarding plaintiff’s failure to appear.” Defendant appeals, contending that it was entitled to summary judgment dismissing the complaint.
For the reasons stated in Oleg’s Acupuncture P.C., as Assignee of Kevin Adams v State Farm Mut. Auto. Ins. Co. (___ Misc 3d ___, 2019 NY Slip Op _____ [appeal No. 2016-2048 K C], decided herewith), the order, insofar as appealed from, is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.
PESCE, P.J., ALIOTTA and SIEGAL, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: March 01, 2019