DVS Chiropractic, P.C. v. Interboro Ins. Co.

• Decision Date: 18 July 2012
• Docket Number: No. 2010–2889KC.,2010–2889KC.
• Citation: 957 N.Y.S.2d 263,36 Misc.3d 138,2012 N.Y. Slip Op. 51443
• Parties: DVS CHIROPRACTIC, P.C. as Assignee of Willie Norman, Respondent, v. INTERBORO INSURANCE COMPANY, Appellant.
• Court: New York Supreme Court — Appellate Division

36 Misc.3d 138
957 N.Y.S.2d 263
2012 N.Y. Slip Op. 51443

DVS CHIROPRACTIC, P.C. as Assignee of Willie Norman, Respondent,
v.
INTERBORO INSURANCE COMPANY, Appellant.

No. 2010–2889KC.

Supreme Court, Appellate Term,
11th And 13th Judicial Districts.

July 18, 2012.

Present: PESCE, P.J., WESTON and RIOS, JJ.

Appeal from an order of the Civil Court of the City of New York, Kings County (Johnny Lee Baynes, J.), entered July 24, 2009, deemed from a judgment of the same court entered August 14, 2009 (see CPLR 5501[c] ). The judgment, entered pursuant to the July 24, 2009 order granting plaintiff's motion for summary judgment and denying defendant's cross motion for summary judgment dismissing the complaint, awarded plaintiff the principal sum of $1,200.54.

ORDERED that the judgment is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court which granted plaintiff's motion for summary judgment and denied defendant's cross motion for summary judgment dismissing the complaint. A judgment was subsequently entered, from which the appeal is deemed to have been taken ( seeCPLR 5501[c] ).

Inasmuch as defendant raises no issue with respect to plaintiff's prima facie case, we do not pass upon the propriety of the Civil Court's determination with respect thereto.

Defendant denied the claims based upon the alleged failure by plaintiff's assignor to appear at duly scheduled examinations under oath (EUOs). However, according to the affidavit submitted by defendant, the initial EUO had twice been rescheduled by mutual agreement, prior to the dates set for each. We do not consider a mutual rescheduling, which occurs prior to the date of that scheduled EUO, to constitute a failure to appear ( see Vitality Chiropractic, P.C. v. Kemper Ins. Co., 14 Misc.3d 94 [App Term, 2d & 11th Jud Dists 2006] ). Therefore, as defendant did not demonstrate that there had been a failure to appear at both an initial and a follow-up EUO, defendant did not prove that plaintiff had failed to comply with a condition precedent to coverage ( see Stephen Fogel Psychological, P.C. v. Progressive Cas. Ins. Co., 35 AD3d 720 [2006] ). Accordingly, the judgment is affirmed. We reach no other issue.

PESCE, P.J., WESTON and RIOS, JJ., concur.