December 22, 2017

Active Care Med. Supply Corp v American Tr. Ins. Co. (2017 NY Slip Op 51902(U))

Headnote

The court considered the fact that the plaintiff, a medical supply company, was seeking to recover assigned first-party no-fault benefits from the defendant, an insurance company. The main issue decided was whether the plaintiff had failed to appear for duly scheduled examinations under oath (EUOs) as required. The holding of the court was that the defendant's proof sufficiently established proper mailing of the EUO scheduling letters and that the plaintiff had indeed failed to appear for the scheduled EUOs. As a result, the court affirmed the order denying the plaintiff's motion for summary judgment and granting the defendant's cross motion for summary judgment dismissing the complaint.

Reported in New York Official Reports at Active Care Med. Supply Corp v American Tr. Ins. Co. (2017 NY Slip Op 51902(U))

Active Care Med. Supply Corp v American Tr. Ins. Co. (2017 NY Slip Op 51902(U)) [*1]

Active Care Med. Supply Corp v American Tr. Ins. Co.

2017 NY Slip Op 51902(U) [58 Misc 3d 144(A)]

Decided on December 22, 2017

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 22, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2015-2055 K C

Active Care Medical Supply Corp., as Assignee of Drumgold, Cheryl, Appellant,
against
American Transit Ins. Co., Respondent.

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Daniel J. Tucker, Esq. (Netanel BenChaim, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Devin P. Cohen, J.), entered July 9, 2015. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

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 which denied plaintiff’s motion for summary judgment, and granted defendant’s cross motion for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs).

Contrary to plaintiff’s sole arguments on appeal, defendant’s proof sufficiently established proper mailing of the EUO scheduling letters (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) and that plaintiff had failed to appear for the scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).

Accordingly, the order is affirmed.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 22, 2017