Action Potential Chiropractic, PLLC v Travelers Ins. Co.

[*1] Action Potential Chiropractic, PLLC v Travelers Ins. Co. 2018 NY Slip Op 51811(U) Decided on December 7, 2018 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 7, 2018
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : DAVID ELLIOT, J.P., MICHELLE WESTON, BERNICE D. SIEGAL, JJ
2016-2887 K C

Action Potential Chiropractic, PLLC, as Assignee of Brumaire, Shimaine, Respondent,

against

Travelers Insurance Company, Appellant.

Law Offices of Aloy O. Ibuzor (Michael L. Rappaport of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered August 9, 2016, deemed from a judgment of that court entered October 4, 2016 (see CPLR 5501 [c]). The judgment, entered pursuant to the August 9, 2016 order granting plaintiff's motion for summary judgment and denying defendant's cross motion for summary judgment dismissing the complaint, awarded plaintiff the principal sum of $364.78.

ORDERED that the judgment is reversed, with $30 costs, so much of the order entered August 9, 2016 as granted plaintiff's motion for summary judgment is vacated, plaintiff's motion for summary judgment is denied, and the matter is remitted to the Civil Court for a determination of the branch of defendant's cross motion seeking summary judgment dismissing the complaint on the ground that plaintiff's assignor had failed to satisfy a condition precedent to coverage.

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) on April 17, 2013 and May 6, 2013. Plaintiff opposed the cross motion. Defendant argued in a reply affirmation that the complaint should be dismissed based on plaintiff's nonappearance at the EUOs, and on the ground of collateral estoppel, based upon an order entered September 4, 2014 by the Civil Court, Queens County, in a separate action, which had granted a motion by defendant for summary judgment dismissing the complaint in that action, finding that defendant had established that plaintiff had failed to appear for EUOs on April 17, 2013 and May 6, 2013. By order entered August 9, 2016, the Civil Court granted plaintiff's motion and denied the branch of defendant's cross motion which had sought summary judgment on the ground of collateral estoppel, stating that the September 4, 2014 order of the Civil Court, Queens County, "alone was not sufficient to establish the issue preclusion in this case."

Plaintiff's motion for summary judgment should have been denied as the proof submitted [*2]by plaintiff failed to establish that the claim 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 form 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 Dept, 2d, 11th & 13th Jud Dists 2011]). With respect to defendant's cross motion for summary judgment dismissing the complaint, the Civil Court properly determined that defendant had failed to establish that the September 4, 2014 order has a preclusive effect on the case at bar (see M. Kaminsky & M. Friedberger v Wilson, 150 AD3d 1094 [2017]). However, the Civil Court did not address the branch of defendant's cross motion seeking summary judgment dismissing the complaint on the ground that plaintiff's assignor had failed to satisfy a condition precedent to coverage based on the proof defendant submitted therein without regard to the September 4, 2014 order. As a result, the matter is remitted to the Civil Court for a determination of this branch of defendant's cross motion.

Accordingly, the judgment is reversed, so much of the order entered August 9, 016 as granted plaintiff's motion for summary judgment is vacated, plaintiff's motion for summary judgment is denied, and the matter is remitted to the Civil Court for a determination of the branch of defendant's cross motion seeking summary judgment dismissing the complaint on the ground that plaintiff's assignor had failed to satisfy a condition precedent to coverage.

ELLIOT, J.P., WESTON and SIEGAL, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 07, 2018