NY Wellness Med., P.C. v. Nationwide Mut. Ins. Co.

NY Wellness Med., P.C. v Nationwide Mut. Ins. Co. (2022 NY Slip Op 50359(U)) [*1] NY Wellness Med., P.C. v Nationwide Mut. Ins. Co. 2022 NY Slip Op 50359(U) [75 Misc 3d 126(A)] Decided on April 28, 2022 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 28, 2022 SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS PRESENT: : TIMOTHY S. DRISCOLL, J.P., HELEN VOUTSINAS, BARRY E. WARHIT, JJ 2021-479 S C NY Wellness Medical, P.C., as Assignee of Carl Grant, Respondent, against Nationwide Mutual Insurance Company, Appellant. Hollander Legal Group , P.C. (Allan S. Hollander and Brian Kaufman of counsel), for appellant. Law Offices of Gabriel & Moroff, P.C. (Jason Moroff and Koenig Pierre of counsel), for respondent. Appeal from an order of the District Court of Suffolk County, Third District (C. Stephen Hackeling, J.), dated June 7, 2021. The order, insofar as appealed from, denied defendant's motion for summary judgment dismissing the complaint. ORDERED that the order, insofar as appealed from, is reversed, without costs, and defendant's motion for summary judgment dismissing the complaint is granted. 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 failed to appear for duly scheduled examinations under oath (EUOs). In an order dated June 7, 2021, the District Court denied the motion, but implicitly found, in effect pursuant to CPLR 3212 (g), that defendant had established the timely and proper mailing of the EUO scheduling letters and the denial of claim form, as well as plaintiff's failure to appear for the EUOs. The Civil Court further found that the only remaining issue for trial was the reasonableness of defendant's EUO requests. To establish its prima facie entitlement to summary judgment dismissing a complaint on [*2]the ground that a provider failed to appear for an EUO, an insurer must demonstrate, as a matter of law, that it twice duly demanded an EUO from the provider, that the provider twice failed to appear, and that the insurer issued a timely denial of the claims (see Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2014])—all elements that the Civil Court found to have been established pursuant to CPLR 3212 (g). Plaintiff does not argue that defendant did not demonstrate its prima facie case. Rather, plaintiff argues that the grounds for defendant's EUO requests were not based on objective reasons. However, contrary to plaintiff's contention, defendant was not required to set forth objective reasons for requesting EUOs in order to establish its prima facie entitlement to summary judgment (see Interboro Ins. Co. v Clennon, 113 AD3d 596 [2d Dept 2014]; 21st Century Pharm., Inc. v Ameriprise Ins. Co., 65 Misc 3d 134[A], 2019 NY Slip Op 51629[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; Parisien v Metlife Auto & Home, 54 Misc 3d 143[A], 2017 NY Slip Op 50208[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; cf. Kemper Independence Ins. Co. v AB Med. Supply, Inc., 187 AD3d 671 [1st Dept 2020]; American Tr. Ins. Co. v Jaga Med. Servs., P.C., 128 AD3d 441 [1st Dept 2015]). As plaintiff failed to raise a triable issue of fact, defendant is entitled to summary judgment dismissing the complaint. Accordingly, the order, insofar as appealed from, is reversed and defendant's motion for summary judgment dismissing the complaint is granted. DRISCOLL, J.P., VOUTSINAS and WARHIT, JJ., concur. ENTER: Paul Kenny Chief Clerk Decision Date: April 28, 2022