June 1, 2018

Compas v Travelers Ins. Co. (2018 NY Slip Op 50821(U))

Headnote

The relevant facts considered by the court were that a provider was seeking to recover assigned first-party no-fault benefits, but the plaintiff had failed to appear for scheduled examinations under oath (EUOs) and the denial of claim forms had been timely mailed by the defendant. The main issue decided by the court was whether the affirmation submitted by the defendant's attorney was sufficient to establish that the plaintiff had failed to appear for the EUOs, and whether the affidavits submitted by the defendant established that the denial of claim forms had been timely mailed. The holding of the court was that the order, insofar as appealed from, was affirmed, as the affirmation submitted by the defendant's attorney was found to be sufficient to establish that the plaintiff had failed to appear for EUOs, and the affidavits submitted by the defendant established that the denial of claim forms had been timely mailed.

Reported in New York Official Reports at Compas v Travelers Ins. Co. (2018 NY Slip Op 50821(U))

Compas v Travelers Ins. Co. (2018 NY Slip Op 50821(U)) [*1]

Compas v Travelers Ins. Co.

2018 NY Slip Op 50821(U) [59 Misc 3d 149(A)]

Decided on June 1, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 June 1, 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
2015-2227 Q C

Jean Claude Compas, M.D., as Assignee of Wright, Eulana, Appellant,
against
Travelers Insurance Company, Respondent.

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Law Office of Aloy O. Ibuzor (William T. Angstreich of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Joseph Esposito, J.), entered July 14, 2015. The order, insofar as appealed from as limited by the brief, granted the branches of defendant’s motion seeking summary judgment dismissing the second, fourth and fifth causes of action.

ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals, as limited by the brief, from so much of an order of the Civil Court as granted the branches of defendant’s motion seeking summary judgment dismissing the second, fourth and fifth causes of action on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs).

Contrary to plaintiff’s contention, the affirmation submitted by defendant’s attorney, who had been present in his office to conduct plaintiff’s EUO on the scheduled dates, was sufficient to establish that plaintiff had failed to appear for the EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). In addition, the affidavits submitted by defendant established that the denial of claim forms had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]).

Accordingly, the order, insofar as appealed from, is affirmed.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: June 01, 2018