September 22, 2017

Royal Med. Supply, Inc. v Nationwide Gen. Ins. Co. (2017 NY Slip Op 51235(U))

Headnote

The court considered an appeal from an order of the Civil Court of the City of New York, Kings County, which granted the defendant's motion for summary judgment dismissing the complaint. The main issue decided in this case was whether the defendant's proof was sufficient to demonstrate that the plaintiff's assignor had failed to appear for examinations under oath (EUOs), a requirement for recovery of assigned first-party no-fault benefits. The court held that the proof submitted by the defendant was indeed sufficient to demonstrate the assignor's failure to appear for the EUOs, and therefore affirmed the order granting the defendant's motion for summary judgment dismissing the complaint.

Reported in New York Official Reports at Royal Med. Supply, Inc. v Nationwide Gen. Ins. Co. (2017 NY Slip Op 51235(U))

Royal Med. Supply, Inc. v Nationwide Gen. Ins. Co. (2017 NY Slip Op 51235(U)) [*1]

Royal Med. Supply, Inc. v Nationwide Gen. Ins. Co.

2017 NY Slip Op 51235(U) [57 Misc 3d 132(A)]

Decided on September 22, 2017

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This opinion is uncorrected and will not be published in the printed Official Reports.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 22, 2017

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

PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN SOLOMON, JJ
2014-1101 K C

Royal Medical Supply, Inc., as Assignee of Salvayra Dalmasi, Appellant,
against
Nationwide General Insurance Company, Respondent.

Gary Tsirelman, P.C. (Douglas Mace, Esq.), for appellant. Epstein, Gialleonardo, Harms & McDonald (Yael Ryzowy, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Harriet L. Thompson, J.), entered February 14, 2014. 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 on the ground that plaintiff’s assignor had failed to appear for duly scheduled examinations under oath (EUOs).

Contrary to plaintiff’s argument on appeal, the proof submitted by defendant in support of its motion was sufficient 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]). Moreover, plaintiff’s arguments on appeal as to defendant’s proof of mailing of the EUO scheduling letters and the denial of claim forms lack merit.

Accordingly, the order is affirmed.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: September 22, 2017