December 22, 2017

Eastcoast Metro. Med., P.C. v ELRAC, Inc. (2017 NY Slip Op 51872(U))

Headnote

The defendant's summary judgment dismissal for EUO nonappearances was reversed because mailing to the correct address was not established. The Appellate Term, Second Department, reversed the order and denied the defendant's motion, citing St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co.; it did not reach the provider's remaining contentions.

Reported in New York Official Reports at Eastcoast Metro. Med., P.C. v ELRAC, Inc. (2017 NY Slip Op 51872(U))

[*1]
Eastcoast Metro. Med., P.C. v ELRAC, Inc.
2017 NY Slip Op 51872(U) [58 Misc 3d 141(A)]
Decided on December 22, 2017
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This opinion is uncorrected and will not be published in the printed Official Reports.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 22, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
&em;

Eastcoast Metropolitan Medical, P.C., as Assignee of Jesse Ferraro, Appellant,

against

ELRAC, Inc., Respondent.


Kopelevich & Feldsherova, P.C. (Galina Feldsherova, Esq.), for appellant. Brand, Glick & Brand, P.C., for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Pamela L. Fisher, J.), entered November 21, 2014. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is denied.

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’s assignor had failed to appear for duly scheduled examinations under oath (EUOs).

Plaintiff correctly argues that defendant failed to establish, as a matter of law, that it had sent the EUO scheduling letters to the assignor’s correct address (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). In light of this finding, we need not reach plaintiff’s remaining contentions.

Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is denied.

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


ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 22, 2017

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