Forest Park Acupuncture, P.C. v. Nationwide Prop. & Cas. Ins. Co.

76 Misc. 3d 132(A), 2022 NY Slip Op 50915(U)

• Court: Appellate Terms of the Supreme Court of New York
• Decided: September 9, 2022
• Docket: 2020-683 K C
• Status: Unpublished

Opinion

Forest Park Acupuncture, P.C. v Nationwide Prop. & Cas. Ins. Co. (2022 NY Slip Op 50915(U)) [*1]

Forest Park Acupuncture, P.C. v Nationwide Prop. & Cas. Ins. Co.

2022 NY Slip Op 50915(U) [76 Misc 3d 132(A)]

Decided on September 9, 2022

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This opinion is uncorrected and will not be published in the printed Official Reports.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 September 9, 2022

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

PRESENT: : THOMAS P. ALIOTTA, P.J., WAVNY TOUSSAINT, DONNA-MARIE E. GOLIA, JJ
2020-683 K C

Forest Park Acupuncture, P.C., as Assignee of Jose Enzo, Respondent,

against

Nationwide Property & Casualty Insurance Co., Appellant.

Hollander Legal Group, P.C. (Allan S. Hollander of counsel), for appellant. Zara Javakov, P.C. (Victoria Tarasova of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Consuelo Mallafre Melendez, J.), entered January 9, 2020. 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 appeals from so much of an order of the Civil Court as denied defendant's motion which had sought summary judgment dismissing the complaint on the ground that plaintiff's assignor failed to appear for duly scheduled examinations under oath (EUOs). The Civil Court found, in effect pursuant to CPLR 3212 (g), that plaintiff established the timely mailing of the bills and defendant established the timely mailing of its denials, and limited the issue for trial to defendant's "EUO no show defense as to the March 27, 2017 date."

In its motion, defendant established that a letter scheduling the EUO for March 27, 2017 was timely and properly mailed (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). The affirmation of defendant's counsel, as well as the transcript of the March 27, 2017 EUO, was sufficient to establish that plaintiff's assignor failed to appear for [*2]that EUO (Pavlova v Nationwide Ins., 70 Misc 3d 144[A], 2021 NY Slip Op 50213[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]). Consequently, as plaintiff failed to raise a triable issue of fact in opposition to defendant's motion or otherwise challenge the implicit CPLR 3212 (g) finding in defendant's favor, defendant is entitled to summary judgment dismissing the complaint.

Accordingly, the order, insofar as appealed from, is reversed and defendant's motion for summary judgment dismissing the complaint is granted.

ALIOTTA, P.J., TOUSSAINT and GOLIA, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: September 9, 2022