RESTORATION CHIROPRACTIC v. 21ST CENTURY INSURANCE COMPANY (2019)

Supreme Court, Appellate Term, New York.

RESTORATION CHIROPRACTIC, P.C., as Assignee of Lopez, Candice, Appellant, v. 21ST CENTURY INSURANCE COMPANY, Respondent.

2016-603 K C

Decided: December 06, 2019

PRESENT: MICHAEL L. PESCE, P.J., MICHELLE WESTON, THOMAS P. ALIOTTA, JJ.

The Rybak Firm, PLLC (Damin J. Toell and Karina Barska of counsel), for appellant. Law Offices of Bryan M. Rothenberg (Sharon A. Brennan and Maryana Feigen of counsel), for respondent.

ORDERED that the order is reversed, with $30 costs, and defendant's motion for summary judgment dismissing the complaint is denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant's motion for summary judgment dismissing the complaint on the ground that plaintiff's assignor had failed to appear for duly scheduled examinations under oath (EUOs).

The record establishes that defendant's follow-up scheduling letter was mailed more than 10 days after plaintiff's assignor had failed to appear for the first scheduled EUO. As a result, this follow-up scheduling letter was untimely (see 11 NYCRR 65-3.5 [b] ). Consequently, defendant's motion should have been denied (see Parisien v. 21st Century Ins. Co., 62 Misc 3d 150[A], 2019 NY Slip Op. 50275[U] [App. Term, 2d Dept., 2d, 11th & 13th Jud. Dists 2019] ).

Accordingly, the order is reversed and defendant's motion for summary judgment dismissing the complaint is denied.

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

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