Mind & Body Acupuncture, P.C. v. Global Liberty Ins. Co. of NY

• Court: Appellate Terms of the Supreme Court of New York
• Decided: July 21, 2017
• Docket: 2017 NYSlipOp 50957(U)
• Status: Published

Opinion

Mind & Body Acupuncture, P.C., as Assignee of Torres, Jessica, Appellant,

against

Global Liberty Ins. Co. of NY, Respondent.

Kopelevich & Feldsherova, P.C. (Galina Feldsherova, Esq.), for appellant. Law Office of Nancy Linden, for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Devin P. Cohen, J.), entered May 14, 2014. The order granted 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 denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint, alleging that the claims at issue had been timely and properly denied on the ground that plaintiff's assignor had failed to appear at duly scheduled examinations under oath (EUOs). Plaintiff opposed the motion. By order entered May 14, 2014, the Civil Court granted defendant's motion.

In support of its motion, defendant failed to establish that the initial and follow-up EUO scheduling letters 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 had been properly scheduled and, thus, that plaintiff's assignor had failed to appear at duly scheduled EUOs (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 is reversed and defendant's motion for summary judgment dismissing the complaint is denied.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: July 21, 2017