November 15, 2019

Ultra Ortho Prods., Inc. v GEICO Ins. Co. (2019 NY Slip Op 51844(U))

Headnote

The relevant facts considered by the court were that the plaintiff, Ultra Ortho Products, Inc., as the assignee of Zacharie Elaine, had moved for summary judgment to recover assigned first-party no-fault benefits, and the defendant, GEICO Ins. Co., cross-moved for summary judgment dismissing the complaint on the ground that the plaintiff had failed to appear for duly scheduled examinations under oath (EUOs). The main issue decided by the court was whether the plaintiff had failed to appear for the scheduled EUOs. The holding of the court was that the defendant's proof was sufficient to demonstrate that the plaintiff had failed to appear for the EUOs and that the EUO scheduling letters and denial of claim forms had been timely mailed. Therefore, the court reversed the order and granted the defendant's cross motion for summary judgment dismissing the complaint.

Reported in New York Official Reports at Ultra Ortho Prods., Inc. v GEICO Ins. Co. (2019 NY Slip Op 51844(U))

Ultra Ortho Prods., Inc. v GEICO Ins. Co. (2019 NY Slip Op 51844(U)) [*1]

Ultra Ortho Prods., Inc. v GEICO Ins. Co.

2019 NY Slip Op 51844(U) [65 Misc 3d 149(A)]

Decided on November 15, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 November 15, 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
2018-1501 K C

Ultra Ortho Products, Inc., as Assignee of Zacharie Elaine, Respondent,
against
GEICO Ins. Co., Appellant.

Rivkin Radler, LLP (Stuart M. Bodoff of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Rosemarie Montalbano, J.), entered June 18, 2018. The order, insofar as appealed from and as limited by the brief, denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant’s cross motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs). By order entered June 18, 2018, the Civil Court denied the motion and cross motion, but found, in effect pursuant to CPLR 3212 (g), that the only issue remaining for trial was whether plaintiff had failed to appear for the scheduled EUOs. Defendant appeals, as limited by its brief, from so much of the order as denied its cross motion.

The proof submitted by defendant was sufficient to demonstrate that plaintiff had failed to appear for the EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; Gentlecare Ambulatory Anesthesia Servs. v GEICO Ins. Co., 59 Misc 3d 152[A], 2018 NY Slip Op 50864[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]), which showing plaintiff failed to rebut. To the extent plaintiff challenges the Civil Court’s [*2]implicit CPLR 3212 (g) findings in favor of defendant with respect to the mailing of the EUO scheduling letters and denial of claims forms, the proof submitted by defendant was sufficient to demonstrate that the EUO scheduling letters and denial of claim forms had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]).

Accordingly, the order, insofar as appealed from, is reversed and defendant’s cross motion for summary judgment dismissing the complaint is granted.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 15, 2019