June 1, 2018

Active Care Med. Supply Corp. v American Tr. Ins. Co. (2018 NY Slip Op 50820(U))

Headnote

The case involved a dispute between an insurance company and a medical supply company over first-party no-fault benefits. The insurance company had scheduled an examination under oath (EUO) for the medical supply company, but the medical supply company failed to appear for the EUOs. The insurance company then moved for summary judgment to dismiss the complaint, arguing that the EUO scheduling letters had been timely mailed and that the medical supply company had failed to appear for the scheduled EUOs. The main issue before the court was whether the insurance company had properly scheduled the EUOs and whether the medical supply company's failure to appear justified the dismissal of the complaint. The court ultimately affirmed the lower court's order, holding that the insurance company had timely mailed the scheduling letters and that the medical supply company's failure to appear for the scheduled EUOs justified the dismissal of the complaint.

Reported in New York Official Reports at Active Care Med. Supply Corp. v American Tr. Ins. Co. (2018 NY Slip Op 50820(U))

Active Care Med. Supply Corp. v American Tr. Ins. Co. (2018 NY Slip Op 50820(U)) [*1]

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

2018 NY Slip Op 50820(U) [59 Misc 3d 149(A)]

Decided on June 1, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 June 1, 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
2015-2178 K C

Active Care Medical Supply Corp., as Assignee of Munoz, Lina M., Appellant,
against
American Transit Ins. Co., Respondent.

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Daniel J. Tucker, Esq. (Daniel J. Tucker and Netanel BenChaim of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Theresa M. Ciccotto, J.), entered June 3, 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

Contrary to plaintiff’s contentions on appeal, 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 had failed to appear for the duly scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).

Accordingly, the order is affirmed.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: June 01, 2018