November 30, 2018

Active Care Med. Supply Corp. v Metropolitan Gen. Ins. Co. (2018 NY Slip Op 51782(U))

Headnote

The main issue in this case was whether the provider, plaintiff, had failed to appear for scheduled examinations under oath (EUOs) and if this failure was grounds for dismissing the complaint. The court considered the evidence presented by the defendant showing the plaintiff's failure to appear for two scheduled EUOs. The court held that the defendant had sufficiently established the plaintiff's failure to appear for the scheduled EUOs, and therefore affirmed the order of the Civil Court granting the defendant's motion for summary judgment dismissing the complaint. The main holding of the case was that the plaintiff's failure to appear for the scheduled EUOs was grounds for dismissal of the complaint.

Reported in New York Official Reports at Active Care Med. Supply Corp. v Metropolitan Gen. Ins. Co. (2018 NY Slip Op 51782(U))

Active Care Med. Supply Corp. v Metropolitan Gen. Ins. Co. (2018 NY Slip Op 51782(U)) [*1]

Active Care Med. Supply Corp. v Metropolitan Gen. Ins. Co.

2018 NY Slip Op 51782(U)

Decided on November 30, 2018

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This opinion is uncorrected and will not be published in the printed Official Reports.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 November 30, 2018

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

PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2016-1399 K C

Active Care Medical Supply Corp., as Assignee of Seymour, Senior, Appellant,
against
Metropolitan General Insurance Company, Respondent.

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Bruno, Gerbino & Soriano, LLP (Nathan Shapiro of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (John J. Kelley, J.), entered May 3, 2016. The order granted defendant’s 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 granted defendant’s 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 contention, defendant sufficiently established plaintiff’s failure to appear for two 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 ELLIOT, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 30, 2018