Charles Deng Acupuncture, P.C. v Travelers Ins. Co.

[*1] Charles Deng Acupuncture, P.C. v Travelers Ins. Co. 2020 NY Slip Op 51320(U) Decided on November 6, 2020 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 6, 2020
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : THOMAS P. ALIOTTA, P.J., DAVID ELLIOT, BERNICE D. SIEGAL, JJ
2018-1324 K C

Charles Deng Acupuncture, P.C., as Assignee of Hercule, Jean, Respondent,

against

Travelers Insurance Company, Appellant.

Law Office of Aloy O. Ibuzor (Michelle O'Meally-Rogers 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 S. Garson, J.), entered March 28, 2018, deemed from a judgment of that court entered May 18, 2018 (see CPLR 5501 [c]). The judgment, entered pursuant to the March 28, 2018 order denying defendant's motion for summary judgment dismissing the complaint and granting plaintiff's cross motion for summary judgment, awarded plaintiff the principal sum of $1,094.35.

ORDERED that the judgment is reversed, with $30 costs, the order dated March 28, 2018 is vacated, defendant's motion for summary judgment dismissing the complaint is granted and plaintiff's cross motion 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 denying defendant's motion which had sought summary judgment dismissing the complaint on the ground that plaintiff's assignor had failed to appear for duly scheduled examinations under oath (EUOs) and granting plaintiff's cross motion for summary judgment. A judgment was subsequently entered on May 18, 2018, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

Defendant established that initial and follow-up letters scheduling an EUO had been timely mailed (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]); that plaintiff's assignor had failed to appear on either date (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]); and that the claims had been timely denied on that ground (see St. Vincent's Hosp. of Richmond, 50 AD3d 1123; [*2]Greenway Med. Supply Corp. v Travelers Ins. Co., 58 Misc 3d 131[A], 2017 NY Slip Op 51765[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]). As plaintiff failed to raise a triable issue of fact in opposition to defendant's motion, defendant is entitled to summary judgment dismissing the complaint.

Accordingly, the judgment is reversed, the order dated March 28, 2018 is vacated, defendant's motion for summary judgment dismissing the complaint is granted and plaintiff's cross motion is denied.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 6, 2020