AB Quality Health Supply Corp. v Nationwide Ins. (2022 NY Slip Op 50299(U))

Hollander Legal Group, P.C. (Allan S. Hollander of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Consuelo Mallafre Melendez, J.), entered October 25, 2019. The order denied 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 granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court denying defendant’s motion which sought summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for duly scheduled examinations under oath (EUOs). The Civil Court held that there is an issue of fact as to whether the EUO scheduling letters were properly mailed to plaintiff’s assignor. While the address on the scheduling letters to the assignor matched the address on the NF-3 forms plaintiff had provided to defendant, it did not match the address set forth on the assignment of benefits form.

A review of the record indicates that the proof submitted by defendant in support of its motion for summary judgment dismissing the complaint established that defendant’s initial and follow-up letters scheduling an EUO had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]), that plaintiff failed to appear on either date (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]), and that the claims were timely denied on that ground (see St. Vincent’s Hosp. of [*2]Richmond v Government Empls. Ins. Co., 50 AD3d 1123). Moreover, we find, contrary to the determination of the Civil Court, that, since the address to which defendant mailed the EUO scheduling letters to the assignor matched the address contained on the NF-3 forms plaintiff provided to defendant, defendant established, prima facie, that the letters had been properly mailed to plaintiff’s assignor (see Compas Med., P.C. v American Tr. Ins. Co., 64 Misc 3d 141[A], 2019 NY Slip Op 51257[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; Sunlight Med. Care, P.C. v Esurance Ins. Co., 49 Misc 3d 130[A], 2015 NY Slip Op 51410[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). As plaintiff’s opposition papers failed to rebut defendant’s prima facie showing, defendant’s motion for summary judgment dismissing the complaint should have been granted.

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

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