Sin Med., P.C. v Travelers Ins. Co.

[*1] Sin Med., P.C. v Travelers Ins. Co. 2016 NY Slip Op 51246(U) Decided on August 18, 2016 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 18, 2016
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-1666 Q C

Sin Medical, P.C., as Assignee of SAMUEL SILVA, Respondent,

against

Travelers Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Barry A. Schwartz, J.), entered July 2, 2013. The order, insofar as appealed from and as limited by the brief, denied defendant's cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant's cross motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, by order entered July 2, 2013, the Civil Court denied plaintiff's motion for summary judgment and defendant's cross-motion for summary judgment dismissing the complaint based on plaintiff's assignor's failure to appear for duly scheduled examinations under oath (EUOs), but found, pursuant to CPLR 3212 (g), that plaintiff had established submission of the claim form at issue and that defendant had established that it had timely denied the claim. As limited by its brief, defendant appeals from the denial of its cross motion.

Plaintiff does not challenge the finding that defendant timely denied the claim at issue. Moreover, defendant established that it had timely mailed the EUO scheduling letters (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Contrary to the Civil Court's conclusion, defendant's failure to establish that the EUO scheduling letters constituted evidence pursuant to the business records exception to the rule against hearsay as set forth in CPLR 4518 is of no consequence. Defendant did not offer the EUO scheduling letters to establish the "truth" of any matters asserted therein, but rather to show that the letters had been sent. As the letters were not offered for a hearsay purpose, they did not need to qualify as business records pursuant to CPLR 4518 (see e.g. Dawson v Raimon Realty Corp., 303 AD2d 708 [2003]; Splawn v Lextaj Corp., 197 AD2d 479 [1993]; Quality Health Prods., Inc. v NY Cent. Mut. Fire Ins. Co., 27 Misc 3d 141[A], 2010 NY Slip Op 50990[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]). Furthermore, defendant established, based upon sworn stenographic transcripts, 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]). Accordingly, the order, insofar as appealed from, is reversed and defendant's cross motion for summary judgment dismissing the complaint is granted.

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

Decision Date: August 18, 2016