May 25, 2018

Active Care Med. Supply Corp. v American Tr. Ins. Co. (2018 NY Slip Op 50767(U))

Headnote

The main issues in this case are whether the defendant's proof sufficiently established proper mailing of the EUO scheduling letters and whether the plaintiff failed to appear for the scheduled EUOs. The court considered the evidence presented by both parties and determined that defendant's proof was sufficient to establish proper mailing of the EUO scheduling letters and that the plaintiff had indeed failed to appear for the scheduled EUOs. The holding of the case was that the order of the Civil Court, which granted the defendant's motion for summary judgment dismissing the complaint, was affirmed. Therefore, the defendant succeeded in their motion to dismiss the complaint based on the plaintiff's failure to appear for the scheduled EUOs.

Reported in New York Official Reports at Active Care Med. Supply Corp. v American Tr. Ins. Co. (2018 NY Slip Op 50767(U))

Active Care Med. Supply Corp. v American Tr. Ins. Co. (2018 NY Slip Op 50767(U)) [*1]

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

2018 NY Slip Op 50767(U) [59 Misc 3d 146(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This opinion is uncorrected and will not be published in the printed Official Reports.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
2015-2202 K C

Active Care Medical Supply Corp., as Assignee of Tarawally, Na-Soko, Appellant,
against
American Transit Ins. Co., Respondent.

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Daniel J. Tucker, Esq. (Daniel J. Tucker and Nethanel BenChaim of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Theresa M. Ciccotto, J.), entered June 3, 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 on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs).

Contrary to plaintiff’s arguments, defendant’s proof sufficiently established proper mailing of the EUO scheduling letters (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 (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