March 16, 2016

New Way Med. Supply Corp. v American Tr. Ins. Co. (2016 NY Slip Op 50370(U))

Headnote

The relevant facts the court considered were related to a dispute between New Way Medical Supply Corp. and American Transit Insurance Co. regarding the payment of first-party no-fault benefits. The main issue decided was whether the plaintiff had failed to comply with a condition precedent to coverage by not appearing for scheduled examinations under oath (EUOs). The holding of the court was that the defendant had timely mailed the EUO scheduling letters and the plaintiff's assignor had failed to appear for the scheduled EUOs, thus failing to comply with a condition precedent to coverage. As a result, the defendant was entitled to summary judgment dismissing the complaint. The court affirmed the order, with the plaintiff having to pay $25 in costs.

Reported in New York Official Reports at New Way Med. Supply Corp. v American Tr. Ins. Co. (2016 NY Slip Op 50370(U))

New Way Med. Supply Corp. v American Tr. Ins. Co. (2016 NY Slip Op 50370(U)) [*1]

New Way Med. Supply Corp. v American Tr. Ins. Co.

2016 NY Slip Op 50370(U) [51 Misc 3d 127(A)]

Decided on March 16, 2016

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This opinion is uncorrected and will not be published in the printed Official Reports.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 March 16, 2016

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

PRESENT: : PESCE, P.J., ALIOTTA and ELLIOT, JJ.
2013-1498 Q C

New Way Medical Supply Corp. as Assignee of MICHEL EDNER, Appellant,
against
American Transit Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (William A. Viscovich, J.), entered March 25, 2013. 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 contention, defendant established that the examination under oath (EUO) 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’s assignor had failed to appear for the duly scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Thus, defendant demonstrated that plaintiff’s assignor had failed to comply with a condition precedent to coverage (id. at 722). As defendant timely denied (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123) the claims on that ground, and plaintiff failed to raise a triable issue of fact in opposition to defendant’s motion, defendant was entitled to summary judgment dismissing the complaint.

Accordingly, the order is affirmed.

Pesce, P.J., Aliotta and Elliot, JJ., concur.

Decision Date: March 16, 2016