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

[*1] Easy Care Acupuncture, P.C. v Ameriprise Ins. Co. 2019 NY Slip Op 51794(U) Decided on November 1, 2019 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 1, 2019
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, BERNICE D. SIEGAL, JJ
2018-556 K C

Easy Care Acupuncture, P.C., as Assignee of Jackie Maulange, Appellant,

against

Ameriprise Ins. Co., Respondent.

Gary Tsirelman, P.C. (Douglas Mace of counsel), for appellant. Bruno, Gerbino & Soriano, LLP (Nathan M. Shapiro of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Richard J. Montelione, J.), entered November 2, 2017. The order, insofar as appealed from, granted the branches of defendant's motion seeking summary judgment dismissing so much of the complaint as sought to recover on claims for $2,079.15, $1,035.12, $980.12, $862.60, $542.56, and $255.04.

ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from so much of an order of the Civil Court as granted the branches of defendant's motion seeking summary judgment dismissing so much of the complaint as sought to recover on claims for $2,079.15, $1,035.12, $980.12, $862.60, $542.56, and $255.04 on the ground that plaintiff's assignor had failed to appear for duly scheduled examinations under oath (EUOs).

Contrary to plaintiff's contentions on appeal, defendant established that the EUO scheduling letters had been timely mailed (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; see also ARCO Med. NY, P.C. v Lancer Ins. Co., 34 Misc 3d 134[A], 2011 NY Slip Op 52382[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists [*2]2011]) and that plaintiff had failed to appear for the duly scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).

Plaintiff's remaining contentions lack merit.

Accordingly, the order, insofar as appealed from, is affirmed.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 01, 2019