December 22, 2017

Greenway Med. Supply Corp. v American Tr. Ins. Co. (2017 NY Slip Op 51901(U))

Headnote

The court considered the fact that the plaintiff, as an assignee of Molina, Jose, was seeking to recover first-party no-fault benefits from the defendant, American Transit Ins. Co. The main issue at hand was that the defendant argued that the plaintiff had failed to appear for scheduled examinations under oath (EUOs), while the plaintiff argued that the EUO scheduling letters were not properly mailed. The court ultimately affirmed the order of the Civil Court, granting the defendant's motion for summary judgment and dismissing the complaint, while also denying the plaintiff's cross motion for summary judgment. The holding was that the defendant's proof sufficiently established the proper mailing of the EUO scheduling letters and that the plaintiff had indeed failed to appear for the scheduled EUOs, thus leading to the affirmation of the order.

Reported in New York Official Reports at Greenway Med. Supply Corp. v American Tr. Ins. Co. (2017 NY Slip Op 51901(U))

Greenway Med. Supply Corp. v American Tr. Ins. Co. (2017 NY Slip Op 51901(U)) [*1]

Greenway Med. Supply Corp. v American Tr. Ins. Co.

2017 NY Slip Op 51901(U) [58 Misc 3d 144(A)]

Decided on December 22, 2017

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This opinion is uncorrected and will not be published in the printed Official Reports.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 December 22, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2015-2032 K C

Greenway Medical Supply Corp., as Assignee of Molina, Jose, Appellant,
against
American Transit Ins. Co., Respondent.

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Daniel J. Tucker, Esq. (Netanel BenChaim, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Devin P. Cohen, J.), entered July 6, 2015. 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 had failed to appear for duly scheduled examinations under oath (EUOs), and denied plaintiff’s cross motion for summary judgment.

Contrary to plaintiff’s arguments as to defendant’s motion, defendant’s proof sufficiently established the 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 SOLOMON, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 22, 2017