RX for You v Nationwide Ins. Co. of Am.

[*1] RX for You v Nationwide Ins. Co. of Am. 2021 NY Slip Op 51171(U) Decided on December 3, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 3, 2021
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : THOMAS P. ALIOTTA, P.J., DAVID ELLIOT, DONNA-MARIE E. GOLIA, JJ
2019-588 K C

RX For You, as Assignee of Bateau Tyra, Appellant,

against

Nationwide Insurance Company of America, Respondent.

Gary Tsirelman, P.C. (Darya Klein of counsel), for appellant. Hollander Legal Group, P.C. (Allan S. Hollander of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Lorna J. McAllister, J.), entered March 18, 2019. The order, insofar as appealed from as limited by the brief, granted defendant's motion for summary judgment dismissing the complaint and denied the branches of plaintiff's cross motion seeking a "finding that Plaintiff's prima facie case has been established" and an order sanctioning defendant.

ORDERED that the order is modified by providing that defendant's motion for summary judgment dismissing the complaint 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, defendant moved for summary judgment on the ground that plaintiff's assignor had failed to appear at duly scheduled examinations under oath (EUOs). Plaintiff cross-moved for summary judgment or, in the alternative, for a "finding that Plaintiff's prima facie case has been established," and an order sanctioning defendant. Insofar as is relevant to this appeal, by order entered March 18, 2019, the Civil Court granted defendant's motion and denied the branches of plaintiff's cross motion seeking a "finding that Plaintiff's prima facie case had been established" and an order sanctioning defendant.

Upon a review of the record, we find that a triable issue of fact exists as to whether the EUOs were scheduled to be held at a place which was "reasonably convenient" to plaintiff (see 11 NYCRR 65-3.5 [e]; Parisien v Metlife Auto & Home, 68 Misc 3d 126[A], 2020 NY Slip Op 50845[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]). In addition, there is also an issue of fact as to whether, prior to the EUO scheduled for October 14, 2016, the parties mutually agreed to reschedule the EUO (see DVS Chiropractic, P.C. v Interboro Ins. Co., 36 Misc 3d 138[A], 2012 NY Slip Op 51443[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]).

Plaintiff's contention that the Civil Court should have granted the branches of plaintiff's cross motion seeking a "finding that Plaintiff's prima facie case has been established" and an order sanctioning defendant lacks merit.

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

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 3, 2021