ULTIMATE HEALTH PRODUCTS INC v. TRAVELERS INSURANCE COMPANY (2019)

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 (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.