May 25, 2018

Gentlecare Ambulatory Anesthesia Servs. v American Tr. Ins. Co. (2018 NY Slip Op 50770(U))

Headnote

The court considered the timely mailing of examination under oath (EUO) and independent medical examination (IME) scheduling letters, as well as the failure of the plaintiff and the plaintiff's assignor to appear for the scheduled EUOs and IMEs. The main issue decided was whether the defendant had established that the EUO and IME scheduling letters had been timely mailed, and whether the plaintiff and the plaintiff's assignor had failed to appear for the scheduled EUOs and IMEs. The court held that the defendant had indeed established that the scheduling letters were timely mailed and that the plaintiff and plaintiff's assignor had failed to appear for the scheduled EUOs and IMEs. Therefore, the court affirmed the order granting the defendant's motion for summary judgment dismissing the complaint.

Reported in New York Official Reports at Gentlecare Ambulatory Anesthesia Servs. v American Tr. Ins. Co. (2018 NY Slip Op 50770(U))

Gentlecare Ambulatory Anesthesia Servs. v American Tr. Ins. Co. (2018 NY Slip Op 50770(U)) [*1]

Gentlecare Ambulatory Anesthesia Servs. v American Tr. Ins. Co.

2018 NY Slip Op 50770(U) [59 Misc 3d 147(A)]

Decided on May 25, 2018

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This opinion is uncorrected and will not be published in the printed Official Reports.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 25, 2018

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

PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2015-2422 K C

Gentlecare Ambulatory Anesthesia Services; Lyonel F. Paul, M.D., as Assignee of Smith, Myasia, 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 (Devin P. Cohen, J.), entered July 28, 2015. The order granted defendant’s 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 granted defendant’s motion for summary judgment dismissing the complaint.

Contrary to plaintiff’s contentions on appeal, defendant established that the examination under oath (EUO) and independent medical examination (IME) 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 scheduled EUOs and plaintiff’s assignor had failed to appear for the scheduled IMEs (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 ELLIOT, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: May 25, 2018