JCC Med., P.C. v Ameriprise Auto & Home

[*1] JCC Med., P.C. v Ameriprise Auto & Home 2017 NY Slip Op 50206(U) Decided on February 8, 2017 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 8, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : WESTON, J.P., ALIOTTA and ELLIOT, JJ.
2015-1216 K C

JCC Medical, P.C., as Assignee of Frederick Guidson, Respondent,

against

Ameriprise Auto & Home, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Ingrid Joseph, J.), entered March 16, 2015. The order, insofar as appealed from, denied defendant's motion for summary judgment dismissing the second through fourth causes of action.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant's motion for summary judgment dismissing the second through fourth causes of action is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the second through fourth causes of action on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs). Plaintiff opposed the motion. By order entered March 16, 2015, the Civil Court denied defendant's motion. (We note that, although defendant's motion did not seek dismissal of the first cause of action, the order addressed that cause of action).

The record establishes that defendant had timely mailed both the EUO scheduling letters and the denial of claim forms at issue with respect to the second through fourth causes of action (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]). Plaintiff failed to raise an issue of fact in opposition to defendant's motion.

Accordingly, the order, insofar as appealed from, is reversed and defendant's motion for summary judgment dismissing the second through fourth causes of action is granted.

Weston, J.P., Aliotta and Elliot, JJ., concur.

Decision Date: February 08, 2017