Velocity Chiropractic, P.C. v Ameriprise Auto & Home

[*1] Velocity Chiropractic, P.C. v Ameriprise Auto & Home 2017 NY Slip Op 51232(U) Decided on September 22, 2017 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 22, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2014-919 Q C

Velocity Chiropractic, P.C., as Assignee of Marianna Petrova, Respondent,

against

Ameriprise Auto & Home, Appellant.

Bruno, Gerbino & Soriano, LLP (Mitchell L. Kaufman, Esq.), for appellant. Law Offices of Ilona Finkelshteyn, P.C. (Marina Josovich, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered March 26, 2014. The order granted plaintiff's motion for summary judgment and denied defendant's cross motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that plaintiff's motion for summary judgment 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 moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs). By order entered March 26, 2014, the Civil Court granted plaintiff's motion and denied defendant's cross motion.

Contrary to defendant's argument on appeal, the proof it submitted in support of its cross motion was not sufficient to demonstrate, as a matter of law, that the EUO scheduling letters had been timely mailed. However, we find that the proof was sufficient to raise a triable issue of fact as to whether defendant had timely mailed the letters and, thus, whether it had properly denied the claims at issue based on plaintiff's failure to appear for duly scheduled EUOs.

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

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: September 22, 2017