ACUPUNCTURE APPROACH v. GLOBAL LIBERTY INS CO OF NY (2019)

Supreme Court, Appellate Term, New York.

ACUPUNCTURE APPROACH, P.C., as Assignee of Darrell Johnson, Respondent, v. GLOBAL LIBERTY INS. CO. OF NY, Appellant.

2018-1600 K C

Decided: October 11, 2019

PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, BERNICE D. SIEGAL, JJ

Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum of counsel), for appellant. Gary Tsirelman, P.C. (Stefan Belinfanti of counsel), for respondent.

ORDERED that the judgment is reversed, with $30 costs, and the matter is remitted to the Civil Court for the entry of a judgment in favor of defendant dismissing the complaint.

At the commencement of a nonjury trial in this action by a provider to recover assigned first-party no-fault benefits, the parties stipulated that the sole issue was whether the letters scheduling plaintiff's assignor's examinations under oath (EUOs) were timely and properly mailed. The only witness at trial was an employee of defendant who testified as to defendant's policies and procedures regarding mailing EUO scheduling letters.

Contrary to the finding of the Civil Court, defendant established that the initial and follow-up letters scheduling an EUO had been timely and properly mailed (see St. Vincent's Hosp. of Richmond v. Government Empls. Ins. Co., 50 AD3d 1123 [2008]).

Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for the entry of a judgment in favor of defendant dismissing the complaint.

PESCE, P.J., ALIOTTA and SIEGAL, JJ., concur.

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