EA Chiropractic Diagnostics, P.C. v. GEICO Ins.

EA Chiropractic Diagnostics, P.C. v GEICO Ins. (2022 NY Slip Op 50557(U)) [*1] EA Chiropractic Diagnostics, P.C. v GEICO Ins. 2022 NY Slip Op 50557(U) [75 Misc 3d 136(A)] Decided on June 3, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 3, 2022 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 2019-1288 K C EA Chiropractic Diagnostics, P.C., as Assignee of Elizabeth Santiago, Tarsha Cambridge, Shirley Lopez, Jose A. Santelises, Mutiu Adelekan and Semen Benderskiy, Respondent, against GEICO Insurance, Appellant. Rivkin Radler, LLP (Stuart M. Bodoff and Cheryl F. Korman of counsel), for appellant. Zara Javakov, P.C. (Zara Javakov of counsel), for respondent. Appeal from an order of the Civil Court of the City of New York, Kings County (Odessa Kennedy, J.), entered June 20, 2019. The order, insofar as appealed from and as limited by the brief, denied the branches of defendant's motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for services rendered to Elizabeth Santiago, Tarsha Cambridge and Semen Benderskiy. 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 appeals from so much of an order of the Civil Court as denied the branches of defendant's motion which had sought summary judgment dismissing so much of the complaint as sought to recover upon claims for services rendered to Elizabeth Santiago, Tarsha Cambridge, and Semen Benderskiy on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs). Contrary to defendant's contention, defendant's motion failed to establish that defendant had timely denied the claims at issue after plaintiff failed to appear at both an initial and a follow-up EUO (see Island Life Chiropractic Pain Care, PLLC v 21st Century Ins. Co., 74 Misc 3d 17 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]; Allay Med. Servs., P.C. v Nationwide Ins., 72 Misc 3d 137[A], 2021 NY Slip Op 50764[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]). 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]), the branches of defendant's motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for services rendered to Elizabeth Santiago, Tarsha [*2]Cambridge, and Semen Benderskiy were properly denied. 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: June 3, 2022