Opinion
CV-702880-19/QU
06-24-2021
NEW YORK CORE CHIROPRACTIC, P.C. As Assignee of Pierre, Plaintiff(s), v. AMERIPRISE INSURANCE COMPANY, Defendant(s).
Plaintiff's Counsel: Gabriel Law Firm, P.C., 100 Merrick Road, 430W, Rockville Centre, NY 11570 Defendant's Counsel: Callinan & Smith, LLP, 3361 Park Avenue, Suite 104, Wantagh, NY 11793
Plaintiff's Counsel: Gabriel Law Firm, P.C., 100 Merrick Road, 430W, Rockville Centre, NY 11570
Defendant's Counsel: Callinan & Smith, LLP, 3361 Park Avenue, Suite 104, Wantagh, NY 11793
Wendy Changyong Li, J.
I. Papers
The following papers were read on Defendant's motion for summary judgment seeking dismissal of Plaintiff's complaint and Plaintiff's cross-motion for summary judgment seeking judgment on its claims against Defendant:
Papers Numbered
Defendant's Notice of Motion and Affirmation in Support dated October 24, 2019 ("Motion") and file stamped by the court on October 31, 2019. 1
Plaintiff's Notice of Cross-Motion and Affirmation in Support dated October 1, 2020 ("Cross-Motion") and electronically filed with the court on the same date. 2
Defendant's Affirmation in Opposition to Plaintiff's Cross Motion and in Support of Defendant's Motion dated October 9, 2020 ("Opposition to Cross-Motion") and electronically filed with the court on October 12, 2020. 3
Plaintiff's Reply Affirmation dated November 30, 2020 ("Reply") and electronically filed with the court on the same date. 4
II. Background
In a summons and complaint filed February 15, 2019, Plaintiff sued Defendant insurance company to recover a total of $2,330.56 in unpaid first party No-Fault benefits for medical services provided to Plaintiff's assignor Pierre, plus attorneys’ fees and statutory interest ( see Motion, Aff. of Levy, Ex. A).
Defendant moved for summary judgment dismissing Plaintiff's complaint on the ground that Plaintiff failed to attend scheduled Examinations Under Oath (" EUO "). Plaintiff cross-moved for summary judgment on its claims against Defendant. Both parties orally argued the motions before this Court on April 30 and May 6, 2021 respectively.
III. Discussion and Decision
CPLR 3212 provides that "a motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions" ( CPLR 3212[b] ). "Mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" ( Zuckerman v. City of New York , 49 NY2d 557, 562 [1980] ). "A defendant moving for summary judgment [seeking an order dismissing plaintiff's complaint] has the initial burden of coming forward with admissible evidence, such as affidavits by persons having knowledge of the facts, reciting the material facts and showing that the cause of action has no merit" ( GTF Mktg. v Colonial Aluminum Sales , 66 NY2d 965, 967 [1985] ; Anghel v Ruskin Moscou Faltischek, P.C. , 190 AD3d 906, 907 [2d Dept 2021], see Jacobsen v. New York City Health & Hosps. Corp. , 22 NY3d 824, 833 [2014] ). A motion for summary judgment "shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party" ( CPLR 3212[b] ; Zuckerman v. City of New York , at 562, see GTF Mktg. v Colonial Aluminum Sales , 66 NY2d at 968 ).
Insurers must pay or deny No-Fault benefit claims "within thirty (30) calendar days after receipt of the proof of the claim" ( Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co. , 25 NY3d 498, 501 [2015] ; Fair Price Med. Supply Corp. v Travelers Indem. Co. , 10 NY3d 556, 563 [2008] ; Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co. , 9 NY3d 312, 317 [2007] ; see Insurance Law § 5106[a] ; 11 NYCRR § 65-3.8 [c]; Presbyterian Hosp. in City of NY v Maryland Cas. Co. , 90 NY2d 274, 278 [1997] ). Failure to establish timely payment or denial of the claim precludes the insurer from offering evidence of its defense to non-payment ( Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co. , 25 NY3d at 506 ; Fair Price Med. Supply Corp. v. Travelers Indem. Co. , 10 NY3d at 563 ; Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co. , 9 NY3d at 318 ; Presbyterian Hosp. in City of NY v Maryland Cas. Co. , 90 NY2d at 281-86 ). Noncompliance with an insurance policy provision requiring disclosure through an EUO is a failure of a condition precedent to an insurer's duty to indemnify ( IDS Prop. Cas. Ins. Co. v Stracar Med. Servs., P.C. , 116 AD3d 1005, 1007 [2d Dept 2014] ; National Med. & Surgical Supply, Inc. v ELRAC, Inc. , 54 Misc 3d 131[A], 2017 NY Slip Op 50028[U] *1 [App Term 2d Dept 2017]) and is a material policy breach precluding recovery of proceeds under the insurance policy ( Nationwide Affinity Ins. Co. of Am. v George , 183 AD3d 755, 756 [2d Dept 2020] ; Interboro Ins. Co. v Clennon , 113 AD3d 596, 597 [2d Dept 2014] ).
Here, the undisputed facts as fully addressed hereinafter, are (i) that Plaintiff submitted its claim to Defendant, (ii) that Defendant received Plaintiff's claims, (iii) that Defendant first requested EUO on the 17th business days after it received Plaintiff's claims, (iv) that Plaintiff failed to attend any of the scheduled EUOs, and (v) that Defendant denied Plaintiff's claims on the seventh (7th) day after Plaintiff's failure to appear for the third scheduled EUO. The legal issues argued by the parties, however, before this Court, are:
First , whether an EUO scheduling letter is a request for additional verification, subject to the fifteen (15) business day requirement ( 11 NYCRR § 65-3.5 [b]).
Second , whether an insurer's transmission of an EUO request letter within thirty (30) calendar days of receiving a claim for No Fault benefits tolls an insurer's time to pay or deny such claim.
Third , the effect of an insurer's late transmission of request for an EUO, if such lateness defense is not precluded.
This Court will address the above issues in the context of Defendant's Motion for summary judgment and Plaintiff's opposition. Plaintiff's Cross-Motion will be analyzed separately.
A. Defendant's Motion
Legal Issue One : whether an EUO scheduling letter is a request for additional verification, subject to the fifteen (15) business day requirement ( 11 NYCRR § 65-3.5 [b]).
Initially, parties disputed whether an EUO constitutes "additional verification." Plaintiff contended that an EUO request was additional verification, which required Defendant to request an EUO within fifteen (15) business days of receipt of Plaintiff's claims ( 11 NYCRR 65-3.5 [b]). Defendant maintained that an EUO was not an additional verification.
Pursuant to Regulation 68-C of the Insurance Department of the State of New York, "(a) [w]ithin 10 business days after receipt of the completed application for motor vehicle no-fault benefits (NYS form NF-2) or other substantially equivalent written notice, the insurer shall forward, to the parties required to complete them, those prescribed verification forms it will require prior to payment of the initial claim. (b) Subsequent to the receipt of one or more of the completed verification forms, any additional verification required by the insurer to establish proof of claim shall be requested within 15 business days of receipt of the prescribed verification forms (d) [i]f the additional verification required by the insurer is a medical examination, the insurer shall schedule the examination to be held within 30 calendar days from the date of receipt of the prescribed verification forms" ( 11 NYCRR 65-3.5 ).
Here, Regulation 68-C requires additional verification request to be sent within fifteen (15) business days of receipts of claims by insurer, except that medical examination shall be scheduled within thirty (30) calendar days of receipts of claims. However, statutes are silent as to whether an EUO constitutes "additional verification" subject to the fifteen (15) business day requirements. Although prior courts have not expressly found that EUO scheduling letters were requests for additional verification, pursuant to case law, EUO scheduling letters have been effectively treated as requests for additional verification ( Urban Radiology, P.C. v Clarendon Natl. Ins. Co. , 31 Misc 3d 132[A], 2011 NY Slip Op 50601[U] * 1 [App Term 2d Dept 2011]; Infinity Health Prods., Ltd. v Progressive Ins. Co. , 28 Misc 3d 133[A], 2010 NY Slip Op 51334[U] *1 [App Term 2d Dept 2010]; Advanced Med., P.C. v Utica Mut. Ins. Co. , 23 Misc 3d 141[A], 2009 NY Slip Op 51023[U] * 1-2 [App Term 2d Dept 2009]). Ultimately, determining whether an EUO request is or is not additional verification is irrelevant because courts have traditionally applied the fifteen (15) business day time requirement for additional verification to any request scheduling EUOs ( see Great Health Care Chiropractic, P.C. v Travelers Ins. Co. , 49 Misc 3d 145[A], 2015 NY Slip Op 51665[U] *1 [App Term 2d Dept 2015]; O & M Med., P.C. v Travelers Indem. Co. , 47 Misc 3d 134[A], 2015 NY Slip Op 50476[U] *1 [App Term 2d Dept 2015]; Longevity Med. Supply, Inc. v IDS Prop. & Cas. Ins. Co. , 44 Misc 3d 137[A], 2014 NY Slip Op 51244[U] *2 [App Term 2d Dept 2014]). Nevertheless, this Court adopts the tradition of viewing the EUO scheduling letter as an "additional verification" request, therefore subject to the fifteen (15) business day requirement.
Legal Issue Two , whether an insurer's transmission of an EUO request letter within thirty (30) calendar days of receiving a claim for No Fault benefits tolls an insurer's time to pay or deny such claim.
It is well established that in order to establish a defense that an insured failed to attend a duly scheduled EUO, an insurer must present evidence of the timely and proper mailing of the EUO scheduling letters ( Nationwide Affinity Ins. Co. of Am. v George , 183 AD3d at 757 ; Progressive Cas. Ins. Co. v Metro Psychological Servs., P.C. , 139 AD3d 693, 694 [2d Dept 2016] ). This may be established with evidence of the actual mailing or by an affidavit of a person "with personal knowledge of the standard office practice for ensuring that the letters are properly addressed and mailed" ( Nationwide Affinity Ins. Co. of Am. v George , 183 AD3d at 757 ; Progressive Cas. Ins. Co. v Metro Psychological Servs., P.C. , 139 AD3d at 694 ).
At oral argument on April 30, 2021, Plaintiff's counsel contended that Defendant's initial EUO scheduling letter was untimely. Defendant's counsel countered that the untimeliness of the EUO scheduling letter was not fatal to Defendant's defense of Plaintiff's nonappearance at scheduled EUOs. This Court invited counsels to submit memoranda regarding their respective positions on the timeliness of the EUO scheduling and the calculation of the times pursuant to relevant statutes.
Here, Defendant's Explanation of Benefits to Plaintiff dated September 5, 2018 indicated receipt of Plaintiff's bill on July 24, 2018 ( see Motion, Levy Aff. Ex. P). Defendant must request additional verification "within 15 business days of receipt of the prescribed verification forms" ( 11 NYCRR § 65-3.5 [b]; A.C. Med., P.C. v Ameriprise Ins. Co. , 54 Misc 3d 127[A], 2016 NY Slip Op 51787[U] *1 [App Term 2d Dept 2016]; Great Health Care Chiropractic, P.C. v Travelers Ins. Co. , 2015 NY Slip Op 51665[U] *1; Neptune Med. Care, P.C. v Ameriprise Auto & Home Ins. , 48 Misc 3d 139[A], 2015 NY Slip Op 51220[U] *1 [App Term 2d Dept 2015]; O & M Med., P.C. v Travelers Indem. Co. , 2015 NY Slip Op 50476[U] *1. As Plaintiff correctly pointed out, Defendant's first EUO scheduling letter dated August 16, 2018, which set September 18, 2018 as the date for the EUO, was two (2) business days late ( see Motion, Levy Aff. Ex. E). It is noted, however, Defendant's first EUO request was made within thirty (30) calendar days of Defendant's receipt of Plaintiff's claims.
Obviously, scheduling an initial EUO in excess of thirty (30) calendar days precludes Defendant from denying a claim for failure to attend an EUO ( see A.C. Med., P.C. v Ameriprise Ins. Co. , 2016 NY Slip Op 51787[U] *1 [more than 30 days]; Great Health Care Chiropractic, P.C. v Travelers Ins. Co. , 2015 NY Slip Op 51665[U] *1 [about 50 days]; Neptune Med. Care, P.C. v Ameriprise Auto & Home Ins. , 2015 NY Sip Op 51220[U] *1 [more than 30 days]; O & M Med., P.C. v Travelers Indem. Co. , 2015 NY Slip Op 50476[U] *1 [nearly 3 months]; Optimal Well-Being Chiropractic, P.C. v Ameriprise Auto & Home , 40 Misc 3d 129[A], 2013 NY Slip Op 51106[U] *2 [App Term 2d Dept 2013] [more than 70 days]). Here, although Defendant's initial EUO scheduling letter was untimely for being two (2) business day late, its untimeliness did not exceed the thirty (30) days in which Defendant was required to pay or deny the claim, so was sufficient to toll Defendant's time to pay or deny the claim ( see A.C. Med., P.C. v Ameriprise Ins. Co. , 2016 NY Slip Op 51787[U] *1; Optimal Well-Being Chiropractic, P.C. v Ameriprise Auto & Home , 2013 NY Slip Op 51106[U] *2; St. Vincent Med. Care, P.C. v Travelers Ins. Co. , 26 Misc 3d 144[A], 2010 NY Slip Op 50446[U] *1 [App Term 2d Dept 2010]). Although letters that do not request verification from a plaintiff are insufficient to delay an insurer's time to pay or deny such plaintiff's claim ( Mount Sinai Hosp. v Triboro Coach , 263 AD2d 11, 17 [2d Dept 1999] ; Parsons Med. Supply Inc. v Progressive Northeastern Ins. Co. , 36 Misc 3d 148[A], 2012 NY Slip Op 51649[U] *2 [App Term 2d Dept 2012]; Points of Health Acupuncture, P.C. v Lancer Ins. Co. , 28 Misc 3d 133[A], 2010 NY Slip Op 51338[U] *2 [App Term 2d Dept 2010]; Alur Med. Supply, Inc. v Progressive Ins. Co. , 21 Misc 3d 134[A], 2008 NY Slip Op 52191[U] *1 [App Term 2d Dept 2008]), in our instant matter, Defendant's initial EUO scheduling letter, which requested Plaintiff's EUO, tolled Defendant's time to pay or deny Plaintiff's claim ( J.C. Healing Touch Rehab, P.C. v Nationwide Ins. , 41 Misc 3d 141[U], 2013 NY Slip Op 52011[U] *2 [App Term 2d Dept 2013]).
Legal Issue Three : the effect of an insurer's late transmission of request for an EUO, if such lateness defense is not precluded.
As discussed above, Defendant sent out its initial EUO scheduling letter two (2) business days late, but within thirty (30) calendar days of its receipt of Plaintiff's claim. Such delay is not fatal to Defendant's defense that Plaintiff did not appear for the scheduled EUO, rather, such EUO request tolled Defendant's time to pay or deny Plaintiff's claims.
"For the purposes of counting the 30 calendar days after proof of claim, wherein the claim becomes overdue pursuant to section 5106 of the Insurance Law, with the exception of section 65-3.6 of this Subpart, any deviation from the rules set out in this section shall reduce the 30 calendar days allowed" ( 11 NYCRR § 65-3.8 [l]). In the context scheduling an initial EUO, as Defendant's counsel correctly maintained during the oral argument and in his email memorandum dated May 3, 2021, any lateness of scheduling the initial EUO merely reduces the thirty (30) calendar days within which an insurer must pay or deny a claim. In our instant case, since Defendant's initial EUO scheduling letter was two (2) business days late, Defendant's time to pay or deny Plaintiff's claim was reduced to twenty-eight (28) days ( see Longevity Med. Supply, Inc. v IDS Prop. & Cas. Ins. Co. , 2014 NY Slip Op 51244[U] *2; Eagle Surgical Supply, Inc. v Allstate Indem. Co. , 41 Misc 3d 141[A], 2013 NY Slip Op 52012[U] *2 [App Term 2d Dept 2013]).
After Plaintiff failed to appear for the September 18, 2018 first EUO, Defendant timely mailed a second scheduling letter dated September 24, 2018, which scheduled the EUO for November 8, 2018 ( see Motion, Levy Aff. Ex. F) ( 11 NYCRR § 65-3.6 [b]; see Active Care Med. Supply Corp. v Ameriprise Auto & Home , 58 Misc 3d 138[A], 2017 NY Slip Op 51835[U] *2 [App Term 2d Dept 2017]; ARCO Med. NY, P.C. v Lancer Ins. Co. , 34 Misc 3d 134[A], 2011 NY Slip Op 52382[U] *2 [App Term 2d Dept 2011]). By letter dated November 12, 2018, Defendant scheduled a third EUO for December 4, 2018 ( see Motion, Levy Aff. Ex. G). The transcripts of the EUO proceedings ( see Motion, Levy Aff. Ex. I, M and O) and affidavits of counsel assigned to conduct the EUOs appended to the motion established Plaintiff's nonappearance at the scheduled EUOs ( Nationwide Affinity Ins. Co. of Am. v George , 183 AD3d at 757 ; TAM Med. Supply Corp. v 21st Century Ins. Co. , 57 Misc 3d 149[A], 2017 NY Slip Op 51510[U] *1 [App Term 2d Dept 2017]; First Class Med., P.C. v State Farm Mut. Auto. Ins. Co. , 55 Misc 3d 141[A], 2017 NY Slip Op 50593[U] *2; National Med. & Surgical Supply, Inc. v ELRAC, Inc. , 2017 NY Slip Op 50028[U] *1).
In an affidavit sworn June 11, 2019, which was appended to the Motion, Overly, Defendant's litigation examiner, established Defendant's claim processing and standard mailing procedures designed to ensure timely mailing of Defendant's denial of Plaintiff's claims after the last EUO at which Plaintiff failed to appear ( Nationwide Affinity Ins. Co. of Am. v George , 183 AD3d at 757 ; TAM Med. Supply Corp. v 21st Century Ins. Co. , 2017 NY Slip Op 51510[U] *1; First Class Med., P.C. v State Farm Mut. Auto. Ins. Co. , 2017 NY Slip Op 50593[U] *2; National Med. & Surgical Supply, Inc. v ELRAC, Inc. , 2017 NY Slip Op 50028[U] *1). Defendant denied Plaintiff's claim on December 11, 2018, just seven (7) days after Plaintiff's failure to appear for the third scheduled EUO on December 4, 2018 ( see Motion, Levy Aff. Ex. Q).
As Defendant's counsel correctly stated in its email memorandum dated May 3, 2021, even though Defendant had only twenty-eight (28) days to pay or deny Plaintiff's claim because the initial EUO request was mailed two (2) days late, Defendant nevertheless timely denied Plaintiff's claim, seven (7) days after Plaintiff's non-appearance to the third scheduled EUO ( Longevity Med. Supply, Inc. v IDS Prop & Cas. Ins. Co. , 2014 NY Slip Op 51244[U] *2; Eagle Surgical Supply, Inc. v Allstate Indem. Co. , 2013 NY Slip Op 52012[U] *2, see Nationwide Affinity Ins. Co. of Am. v George , 183 AD3d at 757 ).
Here, Defendant's evidence that it requested Plaintiff's appearance at EUOs three times, that Plaintiff failed to appear three times and that Defendant denied Plaintiff's claim on that basis satisfied Defendant's burden of establishing a material policy breach by Plaintiff ( Nationwide Affinity Ins. Co. of Am. v George , 183 AD3d at 757 ; IDS Prop. Cas. Ins. Co. v Stracar Med. Servs., P.C. , 116 AD3d at 1007 ; Interboro Ins. Co. v Clennon , 113 AD3d at 597 ).
Plaintiff's Opposition to Defendant's Motion
In opposition, Plaintiff contended that factual issues existed precluding Defendant's motion for summary judgment, that Defendant failed to establish an objective basis for requesting an EUO, and that Defendant did not respond to Plaintiff's objections to the EUO.
It is well established that the No-Fault regulations do not require "an insurer's notice of scheduling an EUO to specify the reason[s] why the insurer is requiring the EUOs" ( City Chiropractic, P.C. v State Farm Ins. , 64 Misc 3d 134[A], 2019 NY Slip Op 51102[U] *1 [App Term 2d Dept 2019]; Bronx Chiropractic Care, P.C. v State Farm Ins. , 63 Misc 3d 132[A], 2019 NY Slip Op 50423[U] *1 [App Term 2d Dept 2019]; Flow Chiropractic, P.C. v Travelers Home & Mar. Ins. Co. , 44 Misc 3d 132[A], 2014 NY Slip Op 51142[U] *1 [App Term 2d Dept 2014], see Longevity Med. Supply, Inc. v Praetorian Ins. Co. , 47 Misc 3d 144[A], 2015 NY Slip Op 50685[U] *1 [App Term 2d Dept 2015]). Contrary to Plaintiff's position, Defendant responded to Plaintiff's letters objecting to the EUOs ( see Motion, Levy Aff. Ex. K and L) even though no such response is required to establish noncompliance with a scheduled EUO ( see Interboro v Clennon , 113 AD3d at 597 ; 21st Century Pharm., Inc. v Integon Natl. Ins. Co. , 69 Misc 3d 142[A], 2020 NY Slip Op 51364[U] *1 [App Term 2d Dept 2020]; Dynamic Balance Acupuncture, P.C. v State Farm Ins. , 62 Misc 3d 145[A], 2019 NY Slip Op 50171[U] *1 [App Term 2d Dept 2019]). Also, contrary to Plaintiff's argument, Defendant was not required to provide "objective reasons for requesting [an] EUO" ( 21st Century Pharm., Inc. v Integon Natl. Ins. Co. , 2020 NY Slip Op 51364[U] *1; Gentlecare Ambulatory Anesthesia Servs. v Geico Ins. Co. , 57 Misc 3d 150[A], 2017 NY Slip Op 51518[U] *1 [App Term 2d Dept 2017], see New Way Med. Supply Corp. v State Farm Mut. Auto. Ins. Co. , 64 Misc 3d 136[A], 2019 NY Slip Op 51158[U]*2 [App Term 2d Dept 2019] ; Dynamic Balance Acupuncture, P.C. v State Farm Ins. , 2019 NY Slip Op 50171[U] *2).
Here, Plaintiff failed to raise factual issues regarding Defendant's defense of Plaintiff's failure to attend an EUO. This Court finds that Defendant has presented prima facie admissible evidence proving that there is no material issue of fact, that the controversy regarding Plaintiff's claims can be decided as a matter of law ( CPLR 3212 [b] ; Jacobsen v New York City Health and Hosps. Corp. , 22 NY3d 824 [2014] ; Brill v City of New York , 2 NY3d 648 [2004] ), that Plaintiff has failed to raise factual issues requiring a trial ( Nationwide Affinity Ins. Co. of Am. v George , 183 AD3d at 757 ; Nova Chiropractic Servs., P.C. v Ameriprise Auto & Home , 58 Misc 3d 142[A], 2017 NY Slip Op 51882[U] *1 [App Term 2d Dept 2017]; K.O. Med., P.C. v IDS Prop. Cas. Ins. Co. , 57 Misc 3d 145[A], 2017 NY Slip Op 51454[U] *1 [App Term 2d Dept 2017]), and that Defendant is entitled to a dismissal of Plaintiff's claims.
B. Plaintiff's Cross-Motion
Regarding the Cross-Motion, Plaintiff bore the burden to show it submitted the statutory claim forms indicating the fact and amount of the loss sustained and "that payment of no-fault benefits was overdue" ( Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co. , 25 NY3d at 501 ; New York Hosp. Med. Ctr. of Queens v QBE Ins. Corp. , 114 AD3d 648, 648 [2d Dept 2014] ; NYU-Hospital for Joint Diseases v Esurance Ins. Co. , 84 AD3d 1190, 1191 [2d Dept 2011] ; Fair Price Med. Supply Corp. v ELRAC Inc. , 12 Misc 3d 119, 120 [App Term 2d Dept 2006] ). Here, Defendant's denial of claim forms dated December 11, 2018, acknowledging receipt of Plaintiff's claims on July 24, 2018 ( see Motion, Levy Aff. Ex. Q) constituted prima facie evidence that Defendant received Plaintiff's claims and that the denial was overdue ( see Lopes v Liberty Mut. Ins. Co. , 24 Misc 3d 127[A], 2009 NY Slip Op 51279[U] *2 [App Term 2d Dept 2009]). As discussed above, however, Defendant demonstrated that Plaintiff failed to appear for scheduled EUOs which mandates a denial of Plaintiff's Cross-Motion for summary judgment on its claims against Defendant ( Actual Chiropractic, P.C. v Mercury Cas. Co. , 53 Misc 3d 135[A], 2016 NY Slip Op 51435[U] *1 [App Term 2d Dept 2016]; Professional Health Imaging, P.C. v State Farm Mut. Auto. Ins. Co. , 52 Misc 3d 134[A], 2016 NY Slip Op 51026[U] *1 [App Term 2d Dept 2016]; Arco Med. NY, P.C. v Lancer Ins. Co. , 37 Misc 3d 90, 93 [App Term 2d Dept 2012] ).
IV. Order
Accordingly, it is
ORDERED that Defendant's Motion for summary judgment is granted and Plaintiff's complaint is dismissed, and it is further
ORDERED that the part clerk is directed to update the court system to reflect Plaintiff's Cross-Motion as motion seq. No.2, and it is further
ORDERED that Plaintiff's Cross-Motion for summary judgement is denied.
This constitutes the DECISION and ORDER of the Court.