Delta Diagnostic Radiology, P.C. v Praetorian Ins. Co.

[*1] Delta Diagnostic Radiology, P.C. v Praetorian Ins. Co. 2015 NY Slip Op 51676(U) Decided on November 13, 2015 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 13, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-1002 Q C

Delta Diagnostic Radiology, P.C. as Assignee of PHILIP OWUSU-AFRIYIE, Appellant,

against

Praetorian Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered April 1, 2013. The order denied plaintiff's motion for summary judgment and granted defendant's cross motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that defendant's cross motion for summary judgment dismissing the complaint is 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 appeals from an order of the Civil Court which denied plaintiff's motion for summary judgment and granted defendant's cross motion for summary judgment dismissing the complaint.

Plaintiff correctly argues that defendant's cross motion should have been denied. The attorney's affirmation submitted by defendant in support of its claim that plaintiff's assignor had failed to appear for examinations under oath (EUOs), which stated, in a conclusory manner, that plaintiff's assignor had failed to appear at duly scheduled EUOs, was insufficient to establish defendant's entitlement to summary judgment (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; Alrof, Inc. v Safeco Natl. Ins. Co., 39 Misc 3d 130[A], 2013 NY Slip Op 50458[U] [App Term, 2d, 11th & 13th Jud Dists 2013]). In addition, defendant's cross-moving papers did not establish that plaintiff's assignor had failed to appear for duly scheduled independent medical examinations (IMEs), as there was no evidence presented to establish that IME scheduling letters had ever been mailed to plaintiff's assignor (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) and that the assignor had failed to appear for such IMEs (see Stephen Fogel Psychological, P.C., 35 AD3d at 722). Consequently, defendant is not entitled to summary judgment dismissing the complaint.

However, contrary to plaintiff's contention, plaintiff failed to demonstrate its prima facie entitlement to summary judgment, as the affidavit plaintiff submitted in support of its motion failed to establish that the claim at issue 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 of claim 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, 11th & 13th Jud Dists 2011]).

Accordingly, the order is modified by providing that defendant's cross motion for summary judgment is denied.

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Decision Date: November 13, 2015