Parisien v. Travelers Ins. Co.
Decision Date | 30 April 2021 |
Docket Number | CV-728829-17/KI |
Citation | 71 Misc.3d 1217 (A),144 N.Y.S.3d 554 (Table) |
Court | New York Civil Court |
Parties | Jules Francois PARISIEN, M.D., a/a/o Gonzales, Nicanor, Plaintiff, v. TRAVELERS INSURANCE COMPANY, Defendant. |
Law Offices of Aloy O. Ibuzor, Hartford, Connecticut (Duane Frankson of counsel), for Travelers Insurance Company, defendant.
The Rybak Firm, PLLC (Oleg Rybak of counsel), New York City, for Jules Francois Parisien, M.D., plaintiff
In this action seeking to recover assigned first-party no-fault benefits, defendant moves for summary judgment dismissing the complaint on the ground that plaintiff failed to appear for an examination under oath (EUO) on January 11, 2017 and March 8, 2017, or in the alternative, to compel plaintiff to appear for an examination before trial (Motion Seq. No. 001). Defendant also seeks an order deeming certain documents as genuine and certain facts as admitted which were submitted in a notice to admit to plaintiff's counsel.
Plaintiff opposes the motion and cross-moves for summary judgment in his favor (Motion Seq. No. 002). Defendant did not submit any opposition papers to plaintiff's cross motion or any reply papers in further support of defendant's motion.
The issue presented is whether plaintiff raised triable issues of fact as to whether plaintiff had failed to appear at the EUOs, where defendant refused plaintiff's requests to reschedule the EUOs for lengthy adjournments of two to three months.
On September 27, 2016, plaintiff's assignor, Nicanor Gonzalez, was allegedly injured in a motor vehicle accident (see defendant's exhibit C in support of motion, complaint ¶ 3; see also plaintiff's exhibit 1 in support of cross motion, NF-AOB form).
On March 9, 2017, plaintiff allegedly rendered medical services to its assignor (see defendant's exhibit A3 in support of motion, NF-3 forms dated 03/20/2017). Plaintiff allegedly submitted two bills these services: one in the amount of $267.79, and another in the amount of $1,625, to a post office box for defendant located in Melville, New York (id. ; see also plaintiff's exhibit 4 in support of cross motion, aff of Julien Parisien, MD ¶¶ 34-39). Defendant allegedly received both bills on March 30, 2017 (see defendant's exhibit A in support of motion, aff of Lorraine Couvaris ¶ 8 [e]-[f]).
Prior to the receipt of the bills at issue, by a letter dated December 9, 2016, addressed to the Rybak Firm, PLLC, defendant's counsel scheduled an EUO of plaintiff to be held on January 11, 2017 at 10:00 a.m. at a court reporting location in Brooklyn (see defendant's exhibit B, scheduling letter). According to an affidavit of service, the scheduling letter was sent by regular mail to the Rybak Firm, PLLC on December 9, 2016 (see id. ). Copies of the letter were allegedly sent to plaintiff, among others.
(see defendant's exhibit B in support of motion [emphasis in original]).
On January 11, 2017, defendant's counsel, by Duane Frankson, Esq., placed a statement on the record at 11:48 a.m. that he had been present at the EUO location since 9:46 a.m., that the time was 11:48 a.m., and no one has appeared on behalf of Dr. Jules Francois Parisien (see defendant's exhibit B in support of motion, Jan 11, 2017 EUO tr. at 6).
By a letter dated January 12, 2017 addressed to the Rybak Firm, PLLC, defendant's counsel stated that the EUO scheduled for January 11, 2017 "will be recorded as a non-appearance" and scheduled a follow-up EUO of plaintiff to be held on March 8, 2017 at 10:00 a.m. at the same court reporting location in Brooklyn (see defendant's exhibit B in support of motion, scheduling letter). The letter further stated, (id. ). According to an affidavit of service, the scheduling letter was sent by regular mail to the Rybak Firm, PLLC on January 12, 2017 (see id. ).
(see defendant's exhibit B in support of motion [emphasis in original]).
By a letter dated March 6, 2017, defendant's counsel responded, "We will not reschedule the examination of your client, Jules Francois Parisien, MD, scheduled for March 8, 2017; your client's appearance is required and should your client fail to appear the date will be recorded as the second non-appearance" (see defendant's exhibit B in support of motion). According to an affidavit of service, the scheduling letter was sent by regular mail to the Rybak Firm, PLLC on March 8, 2017, and the documents were emailed and faxed to their office (see id. ).
On March 8, 2017, defendant's counsel, by Duane Frankson, Esq., placed a statement on the record at 10:58 a.m. that he had been present at the EUO location since 9:45 a.m., that the time was 11:05 a.m., no one has arrived, and no one had contacted him to indicate they were attending (see defendant's exhibit B in support of motion, Mar 8, 2017 EUO tr. at 3-6).
By a letter dated March 10, 2017, plaintiff's counsel replied to defendant's counsel letter dated March 6, 2017, stating, in pertinent part:
(see defendant's exhibit B in support of motion).
By a letter dated April 6, 2017, defendant's counsel responded, in relevant part, (see defendant's exhibit B in support of motion).
On April 10, 2017, defendant allegedly issued a denial of the bill in the amount of $267.79, for the date of service on March 9, 2017 (see defendant's exhibit A4 in support of motion, NF-10 Forms). On April 11, 2017, defendant allegedly issued a denial of the bill in the amount of $1,625, for the date of service on March 9, 2017 (see id. ). The Explanation of Benefits attached to each denial identically stated, in relevant part:
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