September 16, 2015

Sunlight Med. Care, P.C. v Esurance Ins. Co. (2015 NY Slip Op 51410(U))

Headnote

The court considered the fact that the plaintiff, Sunlight Medical Care, P.C., was seeking to recover first-party no-fault benefits as an assignee of Jazmin Ford-Campbell. Defendant Esurance Insurance Company argued that the assignor had failed to appear for scheduled examinations under oath (EUOs). The main issue decided was whether Esurance had properly notified the assignor of the EUOs. The court held that Esurance had indeed mailed the EUO scheduling letters to the address provided by the plaintiff and the assignor on their prescribed application for no-fault benefits and signed assignment of benefits. Therefore, the court denied plaintiff's motion for summary judgment and granted Esurance's cross motion for summary judgment dismissing part of the complaint. The court also noted that plaintiff's claim against its assignor was not properly based upon the assignment, and affirmed the lower court's decision.

Reported in New York Official Reports at Sunlight Med. Care, P.C. v Esurance Ins. Co. (2015 NY Slip Op 51410(U))

Sunlight Med. Care, P.C. v Esurance Ins. Co. (2015 NY Slip Op 51410(U)) [*1]

Sunlight Med. Care, P.C. v Esurance Ins. Co.

2015 NY Slip Op 51410(U) [49 Misc 3d 130(A)]

Decided on September 16, 2015

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This opinion is uncorrected and will not be published in the printed Official Reports.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 16, 2015

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

PRESENT: PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-1490 Q C

Sunlight Medical Care, P.C. as Assignee of Jazmin Ford-Campbell, Appellant,
against
Esurance Insurance Company and Jazmin Ford-Campbell, Respondents.

Appeal from an order of the Civil Court of the City of New York, Queens County (Ulysses Bernard Leverett, J.), entered June 14, 2013. The order denied plaintiff’s motion for summary judgment and granted a cross motion by defendant Esurance Insurance Company for summary judgment dismissing so much of the complaint as was asserted against it.

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to, among other things, recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, and defendant Esurance Insurance Company (Esurance) cross-moved for summary judgment dismissing so much of the complaint as was asserted against it, arguing that plaintiff’s assignor had failed to appear for duly scheduled examinations under oath (EUOs). The Civil Court denied plaintiff’s motion and granted Esurance’s cross motion.

Plaintiff’s sole argument on appeal is that Esurance mailed the EUO scheduling letters to the wrong address, and therefore that plaintiff’s motion should have been granted and Esurance’s cross motion denied. However, the record demonstrates conclusively that Esurance mailed the letters to the address provided by plaintiff on its bills and by plaintiff’s assignor on both her prescribed application for no-fault benefits (NF-2) and her signed assignment of benefits. Thus, plaintiff has not demonstrated that Esurance did not give the assignor proper notice of the EUOs. Consequently, the branch of plaintiff’s motion seeking summary judgment against Esurance was properly denied and Esurance’s cross motion for summary judgment dismissing so much of the complaint as was asserted against it was properly granted.

While plaintiff argues on appeal that the branch of its motion seeking summary judgment against its assignor should have been granted, it offers no reasoning in support of its argument. We note, however, that while plaintiff purports to sue its assignor pursuant to the assignment it received from the assignor, such a cause of action is based upon plaintiff’s own alleged rights against its assignor, and is not properly based upon the assignment.

Accordingly, the order is affirmed.

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Decision Date: September 16, 2015