MSB PHYSICAL THERAPY v. NATIONWIDE INS (2022)

Supreme Court, Appellate Term, New York,

MSB PHYSICAL THERAPY, P.C., as Assignee of Bright, Sayquan U, Appellant, v. NATIONWIDE INS., Respondent.

2020-419 K C

Decided: August 19, 2022

PRESENT: THOMAS P. ALIOTTA, P.J., MICHELLE WESTON, WAVNY TOUSSAINT, JJ.

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.

ORDERED that the order is affirmed, with $25 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 at duly scheduled examinations under oath (EUOs), and denying plaintiff's cross motion for summary judgment.

Plaintiff repeatedly sent letters to defendant which sought to reschedule the EUOs for unspecified dates two months beyond the date on which defendant had initially scheduled the EUOs. Defendant complied with plaintiff's requests. Under the circumstances, contrary to plaintiff's sole contention on appeal with respect to defendant's motion, plaintiff failed to demonstrate the existence of an issue of fact as to whether the EUOs were scheduled at reasonably convenient dates (see 11 NYCRR 65-3.5 [e]).

Accordingly, the order is affirmed.

ALIOTTA, P.J., WESTON and TOUSSAINT, JJ., concur.

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