November 23, 2018

Active Care Med. Supply Corp. v American Tr. Ins. Co. (2018 NY Slip Op 51683(U))

Headnote

The court considered the fact that the defendant had established that the examination under oath (EUO) scheduling letters had been timely mailed and that the plaintiff had failed to appear for the duly scheduled EUOs. The main issue decided was whether the defendant had met the requirements for scheduling the EUOs and whether the plaintiff's failure to appear justified the dismissal of the complaint. The holding of the court was that the defendant had indeed met the requirements for scheduling the EUOs and that the plaintiff's failure to appear justified the dismissal of the complaint. Therefore, the court affirmed the order of the Civil Court, granting the defendant's motion for summary judgment dismissing the complaint.

Reported in New York Official Reports at Active Care Med. Supply Corp. v American Tr. Ins. Co. (2018 NY Slip Op 51683(U))

Active Care Med. Supply Corp. v American Tr. Ins. Co. (2018 NY Slip Op 51683(U)) [*1]

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

2018 NY Slip Op 51683(U) [61 Misc 3d 145(A)]

Decided on November 23, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 November 23, 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
2016-730 K C

Active Care Medical Supply Corp., as Assignee of Carter, Gertrude E., Appellant,
against
American Transit Ins. Co., Respondent.

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Law Office 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 J. Montelione, J.), dated December 2, 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: November 23, 2018