Compas Med., P.C. v All Car Rent A Car

[*1] Compas Med., P.C. v All Car Rent A Car 2016 NY Slip Op 51425(U) Decided on September 27, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 27, 2016
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2014-852 Q C

Compas Medical, P.C., as Assignee of STEPHANIE CORIOLAN, Appellant,

against

All Car Rent a Car, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Cheree A. Buggs, J.), entered March 31, 2014. 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 the assignor had failed to appear for duly scheduled examinations under oath (EUOs). The Civil Court denied plaintiff's motion and granted defendant's cross motion.

Contrary to plaintiff's only contentions with respect to defendant's cross motion, defendant's submissions were sufficient to give rise to a presumption that the denial of claim forms had been properly mailed (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]), and to demonstrate that plaintiff's assignor had failed to appear for the EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; Active Chiropractic, P.C. v Praetorian Ins. Co., 43 Misc 3d 134[A], 2014 NY Slip Op 50634[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]). Consequently, plaintiff has shown no basis to disturb the Civil Court's order.

Accordingly, the order is affirmed.

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

Decision Date: September 27, 2016