May 10, 2019

Active Care Med. Supply Corp. v American Tr. Ins. Co. (2019 NY Slip Op 50742(U))

Headnote

The relevant facts considered by the court were that Active Care Medical Supply Corp. was seeking to recover assigned first-party no-fault benefits from American Transit Insurance Company. American Transit had mailed examination under oath (EUO) scheduling letters to Active Care, but Active Care failed to appear for the scheduled EUOs. American Transit was granted summary judgment dismissing the first and third causes of action by the Civil Court. The main issue decided was whether American Transit had established that the EUO scheduling letters had been timely mailed and whether Active Care had failed to appear for the scheduled EUOs. The holding of the case was that the court affirmed the order granting American Transit's motion, as they had shown that the EUO scheduling letters were timely mailed and that Active Care had failed to appear for the scheduled EUOs.

Reported in New York Official Reports at Active Care Med. Supply Corp. v American Tr. Ins. Co. (2019 NY Slip Op 50742(U))

Active Care Med. Supply Corp. v American Tr. Ins. Co. (2019 NY Slip Op 50742(U)) [*1]

Active Care Med. Supply Corp. v American Tr. Ins. Co.

2019 NY Slip Op 50742(U) [63 Misc 3d 151(A)]

Decided on May 10, 2019

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This opinion is uncorrected and will not be published in the printed Official Reports.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 May 10, 2019

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

PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2016-2883 K C

Active Care Medical Supply Corp., as Assignee of Wilson, Andrae, Appellant,
against
American Transit Ins. Co., Respondent.

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Law Office of Daniel J. Tucker, for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Richard J. Montelione, J.), entered September 12, 2016. The order, insofar as appealed from, granted the branches of defendant’s cross motion seeking summary judgment dismissing the first and third 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 from so much of an order of the Civil Court as granted the branches of defendant’s cross motion seeking summary judgment dismissing the first and third causes of action.

Contrary to plaintiff’s contentions on appeal, defendant established that the examination under oath (EUO) scheduling letters had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) and that plaintiff had failed to appear for the duly scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).

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

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: May 10, 2019