October 13, 2016

Metro Health Prods., Inc. v American Tr. Ins. Co. (2016 NY Slip Op 51517(U))

Headnote

The court considered the fact that the plaintiff, Metro Health Products, Inc., was seeking to recover assigned first-party no-fault benefits from the defendant, American Transit Insurance Company. The main issue in the case was whether the defendant had provided proof that examination under oath (EUO) scheduling letters had been properly mailed, and whether the plaintiff's assignor had failed to appear for the EUOs. The court ultimately held that the proof submitted by the defendant was sufficient to give rise to a presumption that the EUO scheduling letters had been properly mailed, and that the plaintiff's assignor had indeed failed to appear for the EUOs. As a result, the court affirmed the order that 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 Metro Health Prods., Inc. v American Tr. Ins. Co. (2016 NY Slip Op 51517(U))

Metro Health Prods., Inc. v American Tr. Ins. Co. (2016 NY Slip Op 51517(U)) [*1]

Metro Health Prods., Inc. v American Tr. Ins. Co.

2016 NY Slip Op 51517(U) [53 Misc 3d 140(A)]

Decided on October 13, 2016

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This opinion is uncorrected and will not be published in the printed Official Reports.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 October 13, 2016

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-2498 K C

Metro Health Products, Inc., as Assignee of OMAR BOYCE, Appellant,
against
American Transit Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered July 17, 2013. 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.

Contrary to plaintiff’s contentions, the proof submitted by defendant in support of its cross motion was sufficient to give rise to a presumption that the examination under oath (EUO) scheduling letters had been properly mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]), and to demonstrate that plaintiff’s assignor had failed to appear for the 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 Solomon, JJ., concur.

Decision Date: October 13, 2016