October 30, 2015

Ultimate Health Prods., Inc. v American Tr. Ins. Co. (2015 NY Slip Op 51592(U))

Headnote

The relevant facts considered by the court included the plaintiff's motion for summary judgment to recover assigned first-party no-fault benefits, and the defendant's cross motion for summary judgment dismissing the complaint based on the plaintiff's assignor's failure to appear for examinations under oath (EUOs). The main issue decided was whether the defendant had timely and properly denied the claim based on the assignor's failure to appear for scheduled EUOs. The holding of the court was that the defendant had demonstrated that the EUO scheduling letters had been timely mailed and that the assignor had failed to appear for the scheduled EUOs, which was a failure to comply with a condition precedent to coverage. Therefore, the defendant was entitled to summary judgment dismissing the complaint. The court affirmed the order, with $25 costs.

Reported in New York Official Reports at Ultimate Health Prods., Inc. v American Tr. Ins. Co. (2015 NY Slip Op 51592(U))

Ultimate Health Prods., Inc. v American Tr. Ins. Co. (2015 NY Slip Op 51592(U)) [*1]

Ultimate Health Prods., Inc. v American Tr. Ins. Co.

2015 NY Slip Op 51592(U) [49 Misc 3d 140(A)]

Decided on October 30, 2015

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This opinion is uncorrected and will not be published in the printed Official Reports.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 October 30, 2015

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-1286 Q C

Ultimate Health Products, Inc. as Assignee of Sergio Guerrero, Appellant,
against
American Transit Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Barry A. Schwartz, J.), entered May 10, 2013. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross 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 moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint on the ground that it had timely and properly denied the claim based on plaintiff’s assignor’s failure to appear for examinations under oath (EUOs). The Civil Court denied plaintiff’s motion and granted defendant’s cross motion.

Contrary to plaintiff’s contention, defendant established that the 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]). Since defendant demonstrated that plaintiff’s assignor had failed to comply with a condition precedent to coverage (id. at 722) and that defendant had timely denied (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123) the claim on the ground that plaintiff’s assignor had failed to appear for duly scheduled EUOs, defendant was entitled to summary judgment dismissing the complaint.

Accordingly, the order is affirmed.

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

Decision Date: October 30, 2015