Royal Med. Supply, Inc. v Progressive Northeastern Ins. Co.

[*1] Royal Med. Supply, Inc. v Progressive Northeastern Ins. Co. 2012 NY Slip Op 51727(U) Decided on August 31, 2012 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 31, 2012
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., RIOS and ALIOTTA, JJ
2011-2238 K C.

Royal Medical Supply, Inc. as Assignee of JEAN ZAMY, Appellant,

against

Progressive Northeastern Insurance Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Devin P. Cohen, J.), entered June 1, 2011. The order granted defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant's motion for summary judgment dismissing the complaint. The court found that defendant had demonstrated that plaintiff's assignor had failed to appear for two duly scheduled examinations under oath (EUOs).

Plaintiff argues on appeal, in conclusory fashion, that defendant's motion should have been denied because defendant did not submit any evidence that plaintiff's assignor had failed to appear for an EUO on December 1, 2009. However, plaintiff does not dispute that defendant submitted sufficient proof that plaintiff's assignor had failed to appear for EUOs on January 28, 2010 and March 2, 2010, or that those EUOs had been timely scheduled after defendant's receipt of plaintiff's claim forms on December 21, 2009. As plaintiff's remaining contentions lack merit (see Five Boro Psychological Servs., P.C. v Progressive Northeastern Ins. Co., 32 Misc 3d 136[A], 2011 NY Slip Op 51528[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; Leica [*2]Supply, Inc. v Encompass Indem. Co., 35 Misc 3d 142[A], 2012 NY Slip Op 50890[U] [App Term, 2d, 11th & 13th Jud Dists 2012]), the order is affirmed.

Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: August 31, 2012