Allay Med. Servs., P.C. v Nationwide Ins.

[*1] Allay Med. Servs., P.C. v Nationwide Ins. 2021 NY Slip Op 50764(U) Decided on July 30, 2021 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 30, 2021
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : THOMAS P. ALIOTTA, P.J., WAVNY TOUSSAINT, DONNA-MARIE E. GOLIA, JJ
2019-118 K C

Allay Medical Services, P.C., as Assignee of Bright, Sayquan U, Respondent,

against

Nationwide Ins., Appellant.

Hollander Legal Group, P.C. (Allan S. Hollander 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 (Odessa Kennedy, J.), entered December 24, 2018. The order, insofar as appealed from and as limited by the brief, denied defendant's motion for summary judgment dismissing the complaint.

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, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs), and plaintiff cross-moved for summary judgment. By order entered December 24, 2018, the Civil Court denied the motion and cross motion but found, pursuant to CPLR 3212 (g), that the claims at issue were mailed by plaintiff and received by defendant. Defendant appeals, as limited by its brief, from so much of the order as denied its motion for summary judgment.

Contrary to defendant's contention, defendant's motion failed to establish that defendant had timely denied plaintiff's claim after plaintiff failed to appear at both an initial and a follow-up EUO. As defendant did not demonstrate that it is not precluded from raising its proffered defense (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2009]), defendant's motion for summary judgment dismissing the complaint was properly denied (see Bento Ortho, Inc. v Ameriprise Auto & Home, 64 Misc 3d 136[A], 2019 NY Slip Op 51160[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]). We reach no other issue.

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

ALIOTTA, P.J., TOUSSAINT and GOLIA, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: July 30, 2021