New Way Med. Supply Corp. v MVAIC

[*1] New Way Med. Supply Corp. v MVAIC 2014 NY Slip Op 51805(U) Decided on December 17, 2014 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 17, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2012-956 K C

New Way Medical Supply Corp. as Assignee of TEDDY RUTH, Appellant,

against

MVAIC, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Carolyn E. Wade, J.), entered March 15, 2012. The order denied plaintiff's motion for summary judgment and granted defendant's cross motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, without costs, plaintiff's motion for summary judgment is granted, defendant's cross motion for summary judgment dismissing the complaint is denied, and the matter is remitted to the Civil Court for a calculation of statutory interest and an assessment of attorney's fees.

In this action by a provider to recover assigned first-party no fault benefits, the Civil Court denied plaintiff's motion for summary judgment and granted defendant's

cross motion for summary judgment dismissing the complaint, finding that defendant had established its defense based upon the failure of plaintiff's assignor to appear for duly scheduled examinations under oath (EUOs).

The affidavit submitted by plaintiff's employee was sufficient to establish plaintiff's prima facie entitlement to summary judgment (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d 33, 35 [2013]). In opposition to plaintiff's motion and in support of its cross motion for summary judgment dismissing the complaint, defendant annexed a sworn stenographic transcript to show that plaintiff's assignor had failed to appear for the second scheduled EUO. However, defendant failed to demonstrate, by proof in admissible form, that plaintiff's assignor had failed to appear for the first duly scheduled EUO. As a result, defendant failed to sufficiently establish its defense that plaintiff's assignor had failed to appear for duly scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).

In light of the foregoing, we reach no other issue.

Accordingly, the order is reversed, plaintiff's motion for summary judgment is granted, defendant's cross motion for summary judgment dismissing the complaint is denied, and the matter is remitted to the Civil Court for a calculation of statutory interest and an assessment of attorney's fees pursuant to Insurance Law § 5106 and the regulations promulgated thereunder.

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

Decision Date: December 17, 2014