Oriental Health Acupuncture, P.C. v. 21st Century Ins. Co.

• Court: Appellate Terms of the Supreme Court of New York
• Decided: November 30, 2018
• Docket: 2018 NYSlipOp 51761(U)
• Status: Published

Opinion

Oriental Health Acupuncture, P.C., as Assignee of Davis, Christina, Appellant,

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, Queens County (Terrence C. O'Connor, J.), entered December 22, 2015. The order granted defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant's motion for summary judgment on the ground that plaintiff's assignor had failed to appear for examinations under oath (EUOs).

Plaintiff correctly contends that the letters annexed to defendant's motion as Exhibit "C" were delay letters which failed to toll defendant's time to pay or deny the claims. However, defendant's motion also included copies of the EUO scheduling letters mailed by the law firm retained by defendant to conduct the EUOs, and plaintiff has raised no issue with respect to the sufficiency of those letters (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Great Health Care Chiropractic, P.C. v Nationwide Ins., 46 Misc 3d 130[A], 2014 NY Slip Op 51812[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]).

In view of the foregoing, and since plaintiff's remaining contention lacks merit, plaintiff has provided no basis upon which to reverse the order.

Accordingly, the order is affirmed.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 30, 2018