Alleviation Med. Servs., P.C. v Citiwide Auto Leasing

[*1] Alleviation Med. Servs., P.C. v Citiwide Auto Leasing 2015 NY Slip Op 51709(U) Decided on November 19, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 19, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-1465 K C

Alleviation Medical Services, P.C. as Assignee of PHILIP ANDREWS, Appellant,

against

Citiwide Auto Leasing, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered May 1, 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 claim 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 contention, defendant established that verification requests and EUO scheduling letters had been timely mailed (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]); that, upon receipt of the requested verification, defendant had timely denied (see St. Vincent's Hosp. of Richmond, 50 AD3d 1123) the claim on the ground that plaintiff's assignor had failed to appear for duly scheduled EUOs; and that plaintiff's assignor had, in fact, failed to appear for the duly scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Since defendant demonstrated that plaintiff's assignor had failed to comply with a condition precedent to coverage (id. at 722), defendant was entitled to summary judgment dismissing the complaint, and plaintiff's contention that its motion for summary judgment should have been granted lacks merit.

Accordingly, the order is affirmed.

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

Decision Date: November 19, 2015