October 11, 2019

Active Care Med. Supply Corp. v American Tr. Ins. Co. (2019 NY Slip Op 51616(U))

Headnote

The main facts the court considered in this case were that the plaintiff, Active Care Medical Supply Corp., was seeking to recover first-party no-fault benefits from the defendant, American Transit Insurance Company. The defendant had moved for summary judgment to dismiss the complaint on the basis that the plaintiff had failed to appear for scheduled examinations under oath. The plaintiff also cross-moved for summary judgment. The main issue decided by the court was whether the plaintiff's failure to attend scheduled examinations under oath justified the dismissal of the complaint. The court held that the plaintiff's failure to appear for duly scheduled examinations under oath was sufficient grounds for granting the defendant's motion for summary judgment and dismissing the complaint. The court affirmed the order of the Civil Court, with costs of $25. The decision was based on similar reasoning to another case considered simultaneously.

Reported in New York Official Reports at Active Care Med. Supply Corp. v American Tr. Ins. Co. (2019 NY Slip Op 51616(U))

Active Care Med. Supply Corp. v American Tr. Ins. Co. (2019 NY Slip Op 51616(U)) [*1]

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

2019 NY Slip Op 51616(U) [65 Misc 3d 133(A)]

Decided on October 11, 2019

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This opinion is uncorrected and will not be published in the printed Official Reports.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 11, 2019

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

PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, BERNICE D. SIEGAL, JJ
2017-2333 K C

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

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Law Office of Daniel J. Tucker (Joshua M. Goldberg of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Mary V. Rosado, J.), entered September 5, 2017. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

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, and denied plaintiff’s cross motion for summary judgment.

For the reasons stated in Allay Med. Servs., P.C., as Assignee of Mills, Keith A. v Metropolitan Gen. Ins. Co. (___ Misc 3d ___, 2019 NY Slip Op _____ [appeal No. 2017-2389 K C], decided herewith), the order is affirmed.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: October 11, 2019