ACTIVE CARE MEDICAL SUPPLY CORP v. AMERICAN TRANSIT INS CO (2019)

Supreme Court, Appellate Term, New York.

ACTIVE CARE MEDICAL SUPPLY CORP., as Assignee of Wilson, Andrae, Appellant, v. AMERICAN TRANSIT INS. CO., Respondent.

2016-2883 K C

Decided: May 10, 2019

PRESENT: MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Law Office of Daniel J. Tucker, for respondent (no brief filed).

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, plaintiff appeals from so much of an order of the Civil Court as granted the branches of defendant's cross motion seeking summary judgment dismissing the first and third causes of action.

Contrary to plaintiff's contentions on appeal, defendant established that the examination under oath (EUO) scheduling letters had been timely mailed (see St. Vincent's Hosp. of Richmond v. Government Empls. Ins. Co., 50 AD3d 1123 [2008]) and that plaintiff had failed to appear for the duly scheduled EUOs (see Stephen Fogel Psychological, P.C. v. Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).

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

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

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