Delta Diagnostic Radiology, P.C. v American Tr. Inc. Co.

[*1] Delta Diagnostic Radiology, P.C. v American Tr. Inc. Co. 2015 NY Slip Op 51629(U) Decided on November 9, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 9, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-1000 Q C

Delta Diagnostic Radiology, P.C. as Assignee of JANAY WILDES, Appellant,

against

American Transit Inc. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Larry Love, J.), entered March 14, 2013. 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 affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint on the ground that it had timely and properly denied the claims based on plaintiff's assignor's failure to appear for examinations under oath (EUOs). The Civil Court denied plaintiff's motion and granted defendant's cross motion.

Contrary to plaintiff's sole contention on appeal with respect to defendant's cross motion, the affidavit submitted by defendant in support of its cross motion established the timely and proper mailing of the EUO scheduling letters (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Accordingly, the order is affirmed.

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

Decision Date: November 09, 2015