K.O. Med., P.C. v IDS Prop. Cas. Ins. Co.

[*1] K.O. Med., P.C. v IDS Prop. Cas. Ins. Co. 2017 NY Slip Op 51454(U) Decided on October 27, 2017 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 27, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
NO. 2014-2192 K C

K.O. Medical, P.C., as Assignee of Adesina, Deborah, Respondent,

against

IDS Property Casualty Insurance Company, Appellant.

Bruno, Gerbino & Soriano, LLP (Mitchell L. Kaufman, Esq.), for appellant. Law Offices of Melissa Betancourt, P.C. (Melissa Betancourt, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Devin P. Cohen, J.), entered August 19, 2014. The order, insofar as appealed from, denied the branches of defendant's motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for $182.84 and $479.60, respectively.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and the branches of defendant's motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for $182.84 and $479.60, respectively, are granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order of the Civil Court as denied the branches of defendant's motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for $182.84 and $479.60, respectively, on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs).

Defendant established that initial and follow-up letters scheduling an EUO had been timely mailed (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]); that plaintiff had failed to appear on either date (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]); and that the claims had been timely denied on that ground (see St. Vincent's Hosp. of Richmond, 50 AD3d 1123; ARCO Med. NY, P.C. v Lancer Ins. Co., 34 Misc 3d 134[A], 2011 NY Slip Op 52382[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]). As plaintiff failed to raise a triable issue of fact in opposition, defendant is entitled to summary judgment dismissing so much of the complaint as sought to recover upon claims for $182.84 and $479.60, respectively.

Accordingly, the order, insofar as appealed from, is reversed and the branches of defendant's motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for $182.84 and $479.60, respectively, are granted.

PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: October 27, 2017