December 13, 2019

Active Care Med. Supply Corp. v American Tr. Ins. Co. (2019 NY Slip Op 52068(U))

Headnote

The relevant facts in this case are that the plaintiff, a medical supply company, was seeking to recover first-party no-fault benefits from the defendant insurance company. The plaintiff appealed an order from the Civil Court, which denied their motion for summary judgment and granted the defendant's cross motion for summary judgment dismissing the complaint. The main issue decided by the court was whether the plaintiff had failed to appear for duly scheduled examinations under oath (EUOs) as required by the defendant. The holding of the court was that the defendant had established that the EUO scheduling letters had been timely mailed and that the plaintiff had indeed failed to appear for the scheduled EUOs, and as a result, the order from the Civil Court was affirmed.

Reported in New York Official Reports at Active Care Med. Supply Corp. v American Tr. Ins. Co. (2019 NY Slip Op 52068(U))

Active Care Med. Supply Corp. v American Tr. Ins. Co. (2019 NY Slip Op 52068(U)) [*1]

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

2019 NY Slip Op 52068(U) [66 Misc 3d 131(A)]

Decided on December 13, 2019

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This opinion is uncorrected and will not be published in the printed Official Reports.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 13, 2019

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, BERNICE D. SIEGAL, JJ
2018-1771 K C

Active Care Medical Supply Corp., as Assignee of Sanchez, Yerson D., Appellant,
against
American Transit Ins. Co., Respondent.

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Law Office of Daniel J. Tucker, for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Rosemarie Montalbano, J.), entered June 18, 2018. 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 contentions on appeal, defendant established that the EUO scheduling letters had been timely mailed (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 duly 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 SIEGAL, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 13, 2019