May 25, 2018

Active Care Med. Supply Corp. v American Tr. Ins. Co. (2018 NY Slip Op 50777(U))

Headnote

The court considered a provider's action to recover assigned first-party no-fault benefits, where the defendant had moved for summary judgment to dismiss the complaint on the grounds that the plaintiff had failed to appear for duly scheduled examinations under oath. The main issue decided was whether the plaintiff's failure to appear for scheduled examinations under oath justified the defendant's motion for summary judgment to dismiss the complaint. The holding of the court was that the order granting the defendant's motion for summary judgment to dismiss the complaint was affirmed, with $25 costs. This decision was based on the reasoning stated in the case Greenway Med. Supply Corp. v American Tr. Ins. Co., where a similar decision had been made.

Reported in New York Official Reports at Active Care Med. Supply Corp. v American Tr. Ins. Co. (2018 NY Slip Op 50777(U))

Active Care Med. Supply Corp. v American Tr. Ins. Co. (2018 NY Slip Op 50777(U)) [*1]

Active Care Med. Supply Corp. v American Tr. Ins. Co.

2018 NY Slip Op 50777(U) [59 Misc 3d 147(A)]

Decided on May 25, 2018

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This opinion is uncorrected and will not be published in the printed Official Reports.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 May 25, 2018

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

PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2016-174 K C

Active Care Medical Supply Corp., as Assignee of Davila, Ignacio, Appellant,
against
American Transit Ins. Co., Respondent.

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Law Offices of Daniel J. Tucker, for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Richard Montelione, J.), entered December 9, 2015. 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.

For the reasons stated in Greenway Med. Supply Corp. v American Tr. Ins. Co. (58 Misc 3d 144[A], 2017 NY Slip Op 51901[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]), the order is affirmed.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: May 25, 2018