Right Aid Med. Supply Corp. v Hartford Ins. Co.

[*1] Right Aid Med. Supply Corp. v Hartford Ins. Co. 2015 NY Slip Op 51236(U) Decided on August 6, 2015 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 6, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-266 K C

Right Aid Medical Supply Corp. as Assignee of MELANESA WILLIAMS, Appellant, August 6, 2015

against

Hartford Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered December 12, 2012. The order granted defendant's motion for summary judgment dismissing the complaint and denied plaintiff's cross motion for summary judgment.

ORDERED that the order is modified by providing that defendant's motion for summary judgment dismissing the complaint is denied; as so modified, 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 and denied plaintiff's cross motion for summary judgment.

In support of its motion, defendant submitted an affirmation by the attorney who was to conduct examinations under oath (EUOs) of plaintiff's assignor, in which he asserted that plaintiff's assignor had failed to appear. However, as plaintiff notes, defendant's motion papers do not unequivocally demonstrate that defendant's counsel was present on either of the dates of the scheduled EUOs at the office of the court reporting company to which plaintiff's assignor was directed to go. As a result, defendant was not entitled to summary judgment dismissing the complaint because defendant's papers failed to make a prima facie showing that plaintiff's assignor had failed to appear for the duly scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Since plaintiff failed to show that its assignor had appeared for either of the EUOs, plaintiff's cross motion for summary judgment was properly denied (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d, 11th & 13th Jud Dists 2011]).

Accordingly, the order is modified by providing that defendant's motion for summary judgment is denied.

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Decision Date: August 06, 2015