City Care Acupuncture, P.C. v Ameriprise Ins. Co.

[*1] City Care Acupuncture, P.C. v Ameriprise Ins. Co. 2016 NY Slip Op 51036(U) Decided on June 23, 2016 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 23, 2016
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON and ELLIOT, JJ.
2015-277 K C

City Care Acupuncture, P.C., Jamaica Wellness Medical, P.C. and MK Chiropractic, P.C., as Assignees of Hassaan Ramkissoon, Appellants,

against

Ameriprise Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Carol Ruth Feinman, J.), entered October 20, 2014. The order granted defendant's motion for summary judgment dismissing the complaint and denied plaintiffs' cross motion for summary judgment.

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

In this action by providers to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint, asserting that plaintiffs' assignor had failed to appear for an examination under oath (EUO) which had been duly scheduled for June 1, 2012; that although plaintiffs' assignor had appeared for an EUO on June 15, 2012, there was a mutual agreement to reschedule that EUO; and that plaintiffs' assignor had failed to appear on July 9, 2012, the date of the rescheduled EUO. Plaintiffs cross-moved for summary judgment. By order entered October 20, 2014, the Civil Court granted defendant's motion and denied plaintiffs' cross motion.

On appeal, plaintiffs' arguments are limited to what occurred when plaintiffs' assignor appeared for the second scheduled EUO on June 15, 2012. Contrary to plaintiffs' contention, defendant's moving papers establish that, although plaintiffs' assignor appeared for this EUO, there was a mutual agreement to reschedule it, at the assignor's request, to enable plaintiffs' assignor's counsel to attend the EUO (cf. DVS Chiropractic, P.C. v Interboro Ins. Co., 36 Misc 3d 138[A], 2012 NY Slip Op 51443[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]).

As plaintiffs' remaining contention lacks merit, the order is affirmed.

Pesce, P.J., Weston and Elliot, JJ., concur.

Decision Date: June 23, 2016