September 19, 2016

Compas Med., P.C. v American Tr. Ins. Co. (2016 NY Slip Op 51361(U))

Headnote

The court considered the fact that the appellant, Compas Medical, P.C., was seeking to recover assigned first-party no-fault benefits from the respondent, American Transit Ins. Co. The main issue at hand was whether the respondent's proof was sufficient to demonstrate that the examination under oath (EUO) scheduling letters had been properly mailed, and whether the appellant's assignor had failed to appear for the EUOs. The court ultimately held that the proof submitted by the respondent was indeed sufficient to give rise to a presumption that the EUO scheduling letters had been properly mailed, and that the appellant's assignor had failed to appear for the EUOs. As a result, the court affirmed the order, with costs.

Reported in New York Official Reports at Compas Med., P.C. v American Tr. Ins. Co. (2016 NY Slip Op 51361(U))

Compas Med., P.C. v American Tr. Ins. Co. (2016 NY Slip Op 51361(U)) [*1]

Compas Med., P.C. v American Tr. Ins. Co.

2016 NY Slip Op 51361(U) [53 Misc 3d 130(A)]

Decided on September 19, 2016

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This opinion is uncorrected and will not be published in the printed Official Reports.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 September 19, 2016

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-2673 Q C

Compas Medical, P.C., as Assignee of MAXENE ALFRENA, Appellant,
against
American Transit Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Jodi Orlow, J.), entered June 20, 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 appeals from an order of the Civil Court which denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

Contrary to plaintiff’s only contentions, the proof submitted by defendant in support of its cross motion was sufficient to give rise to a presumption that the examination under oath (EUO) scheduling letters had been properly mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]), and to demonstrate that plaintiff’s assignor had failed to appear for the 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 Solomon, JJ., concur.

Decision Date: September 19, 2016