November 6, 2020

ESA Med. Supply, Inc. v Nationwide Affinity Ins. Co. of Am. (2020 NY Slip Op 51324(U))

Headnote

The court considered a case where ESA Medical Supply, Inc. was seeking to recover assigned first-party no-fault benefits from Nationwide Affinity Ins. Co. of America. The main issue decided was whether the defendant had sufficient proof to establish that the initial and follow-up letters scheduling an examination under oath (EUO) had been timely mailed to plaintiff's assignor and whether the plaintiff's assignor had failed to appear for the scheduled EUOs. The court held that the proof submitted by the defendant was sufficient to establish that the letters had been timely mailed to the plaintiff's assignor and that the assignor had failed to appear for the scheduled EUOs. The court also rejected the plaintiff's argument that the affidavit submitted by the defendant did not comply with Alabama law, as it had an embossed notarial seal affixed to it. Therefore, the court affirmed the order, granting the defendant's motion for summary judgment and dismissing the complaint, while denying the plaintiff's cross motion for summary judgment.

Reported in New York Official Reports at ESA Med. Supply, Inc. v Nationwide Affinity Ins. Co. of Am. (2020 NY Slip Op 51324(U))

ESA Med. Supply, Inc. v Nationwide Affinity Ins. Co. of Am. (2020 NY Slip Op 51324(U)) [*1]

ESA Med. Supply, Inc. v Nationwide Affinity Ins. Co. of Am.

2020 NY Slip Op 51324(U) [69 Misc 3d 138(A)]

Decided on November 6, 2020

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This opinion is uncorrected and will not be published in the printed Official Reports.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 November 6, 2020

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

PRESENT: : THOMAS P. ALIOTTA, P.J., DAVID ELLIOT, BERNICE D. SIEGAL, JJ
2018-1599 K C

ESA Medical Supply, Inc., as Assignee of Dwayne Curry, Appellant,
against
Nationwide Affinity Ins. Co. of America, Respondent.

Gary Tsirelman, P.C. (Darya Klein of counsel), for appellant. Law Office of Kevin J. Philbin (Ivy Cherian of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Richard J. Montelione, J.), entered May 24, 2018. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

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 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), and denied plaintiff’s cross motion for summary judgment.

Contrary to plaintiff’s contention, the proof submitted by defendant in support of its motion was sufficient to establish that the initial and follow-up letters scheduling an EUO had been timely mailed to plaintiff’s assignor at the address set forth by plaintiff on its bills (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; 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]). In addition, the contemporaneous affirmations executed by defendant’s counsel demonstrated that plaintiff’s assignor had failed to appear for either of the scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Finally, plaintiff’s argument that the affidavit submitted by defendant in order to prove that the denial of claim forms had been timely mailed should not have been considered because the affidavit did not comply with Alabama law since it was missing an embossed notarial seal and, thus, it did not comply with Real Property Law § 299-a [*2]and CPLR 2309 (c), lacks merit, as a review of the record establishes that an embossed notarial seal was affixed to the affidavit.

Accordingly, the order is affirmed.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 6, 2020