Hands On Physical Therapy Care v. Nationwide Ins.

Hands On Physical Therapy Care v Nationwide Ins. (2022 NY Slip Op 50797(U)) [*1] Hands On Physical Therapy Care v Nationwide Ins. 2022 NY Slip Op 50797(U) [76 Misc 3d 129(A)] Decided on August 12, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 12, 2022 SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS PRESENT: : MICHELLE WESTON, J.P., WAVNY TOUSSAINT, CHEREÉ A. BUGGS, JJ 2021-327 K C Hands On Physical Therapy Care, as Assignee of Neale, Tracy, Appellant, against Nationwide Ins., Respondent. The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik 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 (Patria Frias-Colón, J.), dated April 15, 2021. The order granted defendant's motion for summary judgment dismissing the complaint and denied plaintiff's cross motion for summary judgment. ORDERED that the order is modified by providing that the branches of defendant's motion seeking summary judgment dismissing the first through third causes of action are denied; as so modified, the order is affirmed, without costs. In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court granting defendant's motion for summary judgment dismissing the complaint on the ground that plaintiff failed to appear for duly scheduled examinations under oath (EUOs), and denying plaintiff's cross motion for summary judgment. Plaintiff argues that defendant failed to deny the claims underlying the first through fourth causes of action within 30 days of the second EUO nonappearance and that, as to all seven causes of action, defendant's mailing affidavits did not set forth practices and procedures sufficient to demonstrate proper mailing of the EUO scheduling letters and denial of claim forms on the dates alleged. Plaintiff correctly argues that defendant failed to establish that it timely denied the claims underlying the first through third causes of action within 30 days of the second EUO nonappearance (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]; Quality Health Supply Corp. v Nationwide Ins., 69 Misc 3d 133[A], 2020 NY Slip Op 51226[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]). However, plaintiff failed to demonstrate its prima facie entitlement to summary judgment on those causes of action, as the proof submitted in support of its cross motion failed to establish that the claims had not been timely denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]) or that defendant had issued timely denial of claim forms that were conclusory, vague, or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]). With respect to the fourth through seventh causes of action, the proof submitted by defendant was sufficient to give rise to a presumption that the EUO scheduling letters and denial of claim forms had been properly mailed on the dates alleged (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Finally, with respect to the fourth cause of action, the record establishes that a letter had been mailed on March 28, 2018 scheduling an EUO for April 28, 2018. The resulting toll applied to the claim underlying the fourth cause of action, which claim defendant had received on April 6, 2018 (see ARCO Med. NY, P.C. v Lancer Ins. Co., 34 Misc 3d 134[A], 2011 NY Slip Op 52382[U] [App Term, 2d Dept, 2d, 11tth & 13th Jud Dists 2011]). A follow-up letter was then timely mailed on April 30, 2018, scheduling an EUO for May 25, 2018. Thus, defendant's June 5, 2018 denial of that claim was timely (see id.; see also PV Holding Corp. v AB Quality Health Supply Corp., 189 AD3d 645 [2020]). Accordingly, the order is modified by providing that the branches of defendant's motion seeking summary judgment dismissing the first through third causes of action are denied. WESTON, J.P., TOUSSAINT and BUGGS, JJ., concur. ENTER: Paul Kenny Chief Clerk Decision Date: August 12, 2022