August 2, 2019

Compas Med., P.C. v American Tr. Ins. Co. (2019 NY Slip Op 51257(U))

Headnote

The court considered the fact that the plaintiff, Compas Medical, P.C., was seeking to recover first-party no-fault benefits as an assignee. The main issue was whether the plaintiff's assignor had failed to appear for duly scheduled examinations under oath (EUOs). The court held that the EUO scheduling letters had been timely mailed and that the plaintiff's assignor had indeed failed to appear for the scheduled EUOs. The court also found that the defendant had mailed the EUO scheduling letters to the address provided by the plaintiff. As a result, the court affirmed the order which denied the plaintiff's motion for summary judgment and granted the defendant's cross motion for summary judgment dismissing the complaint.

Reported in New York Official Reports at Compas Med., P.C. v American Tr. Ins. Co. (2019 NY Slip Op 51257(U))

Compas Med., P.C. v American Tr. Ins. Co. (2019 NY Slip Op 51257(U)) [*1]
Compas Med., P.C. v American Tr. Ins. Co.
2019 NY Slip Op 51257(U) [64 Misc 3d 141(A)]
Decided on August 2, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 August 2, 2019

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


PRESENT: : MICHAEL L. PESCE, P.J., MICHELLE WESTON, THOMAS P. ALIOTTA, JJ
2017-847 K C
Compas Medical, P.C., as Assignee of McGarrell, Curtis, 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 (Theresa M. Ciccotto, J.), entered January 31, 2017. 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’s assignor 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’s assignor had failed to appear for the duly scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). To the extent plaintiff challenges the address to which the EUO scheduling letters were mailed, a review of the record shows that defendant mailed the EUO scheduling letters to the address provided by plaintiff in the bills it sent to defendant.

Accordingly, the order is affirmed.

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


ENTER:
Paul Kenny
Chief Clerk
Decision Date: August 02, 2019