December 15, 2017

Greenway Med. Supply Corp. v Travelers Ins. Co. (2017 NY Slip Op 51765(U))

Headnote

The court considered whether the provider had failed to appear for scheduled examinations under oath (EUOs) and whether the denial of claim form had been timely mailed. The main issue was whether the provider had failed to appear for the EUOs as required, and whether the denial of claim form had been timely mailed. The court held that the provider had failed to appear for the EUOs, as evidenced by the affirmation submitted by the defendant's attorney. The court also held that the denial of claim form had been timely mailed, as established by the affidavits submitted by the defendant. As a result, the court affirmed the order granting the defendant's motion for summary judgment dismissing the complaint.

Reported in New York Official Reports at Greenway Med. Supply Corp. v Travelers Ins. Co. (2017 NY Slip Op 51765(U))

Greenway Med. Supply Corp. v Travelers Ins. Co. (2017 NY Slip Op 51765(U)) [*1]

Greenway Med. Supply Corp. v Travelers Ins. Co.

2017 NY Slip Op 51765(U) [58 Misc 3d 131(A)]

Decided on December 15, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 15, 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
2014-2253 Q C

Greenway Medical Supply Corp., as Assignee of Tellechea Maria, Appellant,
against
Travelers Insurance Company, Respondent.

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Law Offices of Aloy O. Ibuzor (Miriam Granov, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Sally E. Unger, J.), entered August 13, 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 EUO 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 affidavits submitted by defendant established that the denial of claim form had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Plaintiff’s remaining contention lacks merit.

Accordingly, the order is affirmed.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 15, 2017