ML Ave. N Acupuncture, P.C. v. Nationwide Mut. Ins. Co.

2024 NY Slip Op 51328(U)

• Court: Appellate Terms of the Supreme Court of New York
• Decided: September 24, 2024
• Docket: 570144/24
• Status: Unpublished

Opinion

ML Ave. N Acupuncture, P.C. v Nationwide Mut. Ins. Co. (2024 NY Slip Op 51328(U)) [*1]

ML Ave. N Acupuncture, P.C. v Nationwide Mut. Ins. Co.

2024 NY Slip Op 51328(U)

Decided on September 24, 2024

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This opinion is uncorrected and will not be published in the printed Official Reports.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 24, 2024

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Hagler, P.J., Brigantti, Tisch, JJ.
570144/24

ML Avenue N Acupuncture, P.C., a/a/o Vevlena Cameron, Plaintiff-Respondent,

against

Nationwide Mutual Insurance Company, Defendant-Appellant.

Defendant, as limited by its briefs, appeals from so much of an order of the Civil Court of the City of New York, Bronx County (Betty Lugo, J.), entered December 5, 2023, as denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Betty Lugo, J.), entered December 5, 2023, insofar as appealed from, reversed, with $10 costs, defendant's motion granted and the complaint dismissed.

Defendant-insurer's motion for summary judgment dismissing this action for first-party no fault benefits should have been granted on the ground that plaintiff failed to appear at scheduled examinations under oath [EUOs] (see Kemper Independence Ins. Co. v Cornerstone Chiropractic, P.C., 185 AD3d 468, 469 [2020]). Contrary to plaintiff's contention, no issue of fact was raised as to the propriety of the EUO requests. Defendant made a prima facie demonstration that it provided plaintiff with the "specific objective justification" for the EUO requests (11 NYCRR 65-3.5 [e]; see Kemper Independence Ins. Co. v AB Med. Supply, Inc., 187 AD3d 671 [2020]), and, in opposition, no triable issue of fact was raised by plaintiff that the requests were unreasonable (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [2011]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: September 24, 2024