February 19, 2013

Quality Psychological Servs., P.C. v Metropolitan Cas. Ins. Co. (2013 NY Slip Op 50250(U))

Headnote

The relevant facts considered by the court in this case were that Quality Psychological Services, P.C., as an assignee of Tanisha Mighten, was seeking to recover assigned first-party no-fault benefits from Metropolitan Casualty Insurance Company. The main issue decided by the court was whether defendant's motion for summary judgment dismissing the complaint should be granted. The holding of the court was that defendant's motion for summary judgment was denied, as they failed to establish that the scheduled examinations under oath (EUOs) had been properly scheduled and mailed prior to the dates of the scheduled EUOs. Therefore, the court affirmed the order denying defendant's motion for summary judgment.

Reported in New York Official Reports at Quality Psychological Servs., P.C. v Metropolitan Cas. Ins. Co. (2013 NY Slip Op 50250(U))

Quality Psychological Servs., P.C. v Metropolitan Cas. Ins. Co. (2013 NY Slip Op 50250(U)) [*1]

Quality Psychological Servs., P.C. v Metropolitan Cas. Ins. Co.

2013 NY Slip Op 50250(U) [38 Misc 3d 142(A)]

Decided on February 19, 2013

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This opinion is uncorrected and will not be published in the printed Official Reports.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 February 19, 2013

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

PRESENT: : PESCE, P.J., RIOS and SOLOMON, JJ
2011-566 K C.

Quality Psychological Services, P.C. as Assignee of TANISHA MIGHTEN, Respondent, —
against
Metropolitan Casualty Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Johnny Lee Baynes, J.), entered November 29, 2010. The order, insofar as appealed from, denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order of the Civil Court as denied defendant’s motion for summary judgment dismissing the complaint.

Defendant moved for summary judgment on the ground that it had timely denied plaintiff’s claims based upon the assignor’s failure to appear for duly scheduled examinations under oath (EUOs). However, defendant failed to establish that the EUO scheduling letters had been mailed prior to the dates of the scheduled EUOs. As a result, defendant failed to establish, as a matter of law, its entitlement to summary judgment dismissing the complaint (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Accordingly, the order, insofar as appealed from, is affirmed.

Pesce, P.J., Rios and Solomon, JJ., concur.
Decision Date: February 19, 2013