February 22, 2012

Bath Ortho Supply, Inc. v New York Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 50271(U))

Headnote

The court considered the fact that the defendant insurer properly mailed notices for an examination under oath to the plaintiff's assignor, but the assignor failed to appear. The main issue was whether the defendant was entitled to summary judgment dismissing the action for first-party no-fault benefits. The court held that the defendant made a prima facie showing of entitlement to summary judgment by establishing that it properly mailed the notices for the examination and that the assignor failed to appear. The court also held that the plaintiff failed to raise a triable issue as to the reasonableness of the requests or the assignor's failure to attend the examination, and that the defendant was not required to demonstrate that the assignor's failure to appear was willful. Therefore, the court reversed the order of the Civil Court and granted the defendant's motion for summary judgment dismissing the complaint.

Reported in New York Official Reports at Bath Ortho Supply, Inc. v New York Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 50271(U))

Bath Ortho Supply, Inc. v New York Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 50271(U)) [*1]

Bath Ortho Supply, Inc. v New York Cent. Mut. Fire Ins. Co.

2012 NY Slip Op 50271(U) [34 Misc 3d 150(A)]

Decided on February 22, 2012

Appellate Term, First 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This opinion is uncorrected and will not be published in the printed Official Reports.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 February 22, 2012

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

PRESENT: Hunter, Jr., J.P., Shulman, Torres, JJ
570398/11.

Bath Ortho Supply, Inc. a/a/o Clarence Echols, Plaintiff-Respondent, – –
against
New York Central Mutual Fire Insurance Company, Defendant-Appellant.

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Robert R. Reed, J.), entered January 31, 2011, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Robert R. Reed, J.), entered January 31, 2011, reversed, with $10 costs, motion granted and complaint dismissed. The Clerk is directed to enter judgment accordingly.

The defendant insurer made a prima facie showing of entitlement to summary judgment dismissing the action for first-party no-fault benefits by establishing that it properly mailed the notices for an examination under oath (EUO) to plaintiff’s assignor, and that the assignor failed to appear (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [2011], lv denied 17 NY3d 705 [2011]; cf. Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). In opposition, plaintiff failed to raise a triable issue as to the reasonableness of the requests or the assignor’s failure to attend the EUOs. Contrary to plaintiff’s contention, defendant was not required to demonstrate that the assignor’s failure to appear for the EUOs was willful (see Unitrin at 561).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: February 22, 2012