Actual Chiropractic, P.C. v Mercury Cas. Co.

[*1] Actual Chiropractic, P.C. v Mercury Cas. Co. 2016 NY Slip Op 51435(U) Decided on September 27, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 27, 2016
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2014-1226 K C

Actual Chiropractic, P.C., as Assignee of ALEXANDER LEITSEY, Respondent,

against

Mercury Casualty Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Carol Ruth Feinman, J.), entered April 29, 2014. The order denied defendant's motion for summary judgment dismissing the complaint and granted plaintiff's cross motion for summary judgment.

ORDERED that the order is reversed, with $30 costs, defendant's motion for summary judgment dismissing the complaint is granted and plaintiff's cross motion for summary judgment is denied.

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

The proof submitted by defendant established that it had timely mailed both the EUO scheduling letters and the denial of claim forms at issue (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]), and that plaintiff's assignor had failed to appear for the duly scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; Ortho Prods. & Equip., Inc. v Interboro Ins. Co., 41 Misc 3d 143[A], 2013 NY Slip Op 52054[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]). We note that, contrary to the conclusion of the Civil Court, "the failure to set forth the dates of the scheduled examinations in the denial of claim form[s] did not render the denial[s] conclusory, vague, or without merit as a matter of law" (Quality Psychological Servs., P.C. v Avis Rent-A-Car Sys., LLC, 47 Misc 3d 129[A], 2015 NY Slip Op 50378[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).

Accordingly, the order is reversed, defendant's motion for summary judgment dismissing the complaint is granted and plaintiff's cross motion for summary judgment is denied.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: September 27, 2016