December 22, 2017

Careful Complete Med., P.C. v Hartford Ins. Co. (2017 NY Slip Op 51858(U))

Headnote

The court considered the fact that the plaintiff had failed to appear for scheduled examinations under oath (EUOs), which led to a motion for summary judgment by the defendant to dismiss the complaint. The main issue decided was whether the defendant's attorney's affirmation was sufficient to establish the plaintiff's failure to appear for the EUOs, and if the proof submitted by the defendant was enough to give rise to a presumption that EUO scheduling letters and the denial of claim forms had been properly mailed. The holding of the case was that the order granting the defendant's motion for summary judgment was affirmed, as the proof submitted was sufficient to establish the plaintiff's failure to appear for the EUOs and give rise to a presumption of proper mailing.

Reported in New York Official Reports at Careful Complete Med., P.C. v Hartford Ins. Co. (2017 NY Slip Op 51858(U))

Careful Complete Med., P.C. v Hartford Ins. Co. (2017 NY Slip Op 51858(U)) [*1]

Careful Complete Med., P.C. v Hartford Ins. Co.

2017 NY Slip Op 51858(U) [58 Misc 3d 140(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This opinion is uncorrected and will not be published in the printed Official Reports.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
2015-363 K C

Careful Complete Medical, P.C., as Assignee of Sandra Popkin-Buckanan, Appellant,
against
Hartford Insurance Company, Respondent.

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Iseman, Cunningham, Riester & Hyde, LLP, for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Carol Ruth Feinman, J.), entered December 11, 2014. 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 contention, the affirmation submitted by defendant’s attorney, who was present in his office to conduct plaintiff’s EUOs on the scheduled dates, was sufficient to establish that plaintiff had failed to appear for the EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). In addition, the proof submitted by defendant in support of its motion was sufficient to give rise to a presumption that EUO scheduling letters and the denial of claim forms at issue had been properly mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]).

Accordingly, the order is affirmed.

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

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