October 11, 2019

Ultimate Health Prods., Inc. v Travelers Ins. Co. (2019 NY Slip Op 51620(U))

Headnote

The case involved Ultimate Health Products, Inc., as the assignee of Zenaida Solero, suing Travelers Insurance Company to recover first-party no-fault benefits. The main issue in the case was whether plaintiff had failed to appear for scheduled examinations under oath (EUOs). At the nonjury trial, the Civil Court dismissed the complaint after finding that the defendant had established that plaintiff had failed to appear for the EUOs. The appellate court reviewed the determination made after the nonjury trial and affirmed the judgment, stating that the trial court's opportunity to observe and evaluate the testimony and demeanor of the witnesses affords it a better perspective from which to assess their credibility. Therefore, the holding of the case was that the judgment of the Civil Court, which dismissed the complaint on the grounds that the plaintiff had failed to appear for scheduled EUOs, was affirmed by the appellate court.

Reported in New York Official Reports at Ultimate Health Prods., Inc. v Travelers Ins. Co. (2019 NY Slip Op 51620(U))

Ultimate Health Prods., Inc. v Travelers Ins. Co. (2019 NY Slip Op 51620(U)) [*1]

Ultimate Health Prods., Inc. v Travelers Ins. Co.

2019 NY Slip Op 51620(U) [65 Misc 3d 134(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This opinion is uncorrected and will not be published in the printed Official Reports.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
2018-355 K C

Ultimate Health Products, Inc., as Assignee of Zenaida Solero, Appellant,
against
Travelers Insurance Company, Respondent.

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Law Office of Aloy O. Ibuzor (Janice A. Robinson of counsel), for respondent.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Reginald A. Boddie, J.), entered September 23, 2015. The judgment, upon a decision of that court dated December 22, 2014, after a nonjury trial, dismissed the complaint.

ORDERED that, on the court’s own motion, the notice of appeal from the decision dated December 22, 2014 is deemed a premature notice of appeal from the judgment entered September 23, 2015 (see CPLR 5520 [c]); and it is further,

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

At a nonjury trial of this action by a provider to recover assigned first-party no-fault benefits, the only issue to be tried was whether plaintiff had failed to appear for scheduled examinations under oath (EUOs). The Civil Court dismissed the complaint, finding that defendant had established that plaintiff had failed to appear for the EUOs.

In reviewing a determination made after a nonjury trial, the power of this court is as broad as that of the trial court, and this court may render the judgment it finds warranted by the facts, bearing in mind that the determination of a trier of fact as to issues of credibility is given substantial deference, as a trial court’s opportunity to observe and evaluate the testimony and demeanor of the witnesses affords it a better perspective from which to assess their credibility [*2](see Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492 [1983]; Hamilton v Blackwood, 85 AD3d 1116 [2011]; Zeltser v Sacerdote, 52 AD3d 824 [2008]). Upon a review of the testimony and evidence which was admitted at trial without objection, we find no basis to disturb the Civil Court’s finding.

Accordingly, the judgment is affirmed.

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

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