TAM Med. Supply Corp. v 21st Century Ins. Co.

[*1] TAM Med. Supply Corp. v 21st Century Ins. Co. 2017 NY Slip Op 51510(U) Decided on November 3, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 3, 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
2014-2698 Q C

TAM Medical Supply Corp., as Assignee of Garcia, Nancy, Appellant,

against

21st Century Insurance Company, Respondent.

The Rybak Firm, PLLC (Joseph D. DePalma, Esq.), for appellant. Law Offices of Bryan M. Rothenberg (Sharon A. Brennan, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Cheree A. Buggs, J.), entered October 16, 2014. The order, insofar as appealed from as limited by the brief, granted defendant's cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals, as limited by its brief, from so much of an order of the Civil Court as granted defendant's cross motion for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs).

Contrary to plaintiff's contentions, the affirmations by the attorneys who were scheduled to conduct the EUOs, and certified transcripts reflecting plaintiff's failure to appear for the EUOs, established that plaintiff's assignor had failed to appear at either of the EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). In addition, defendant sufficiently established that the denial of claim forms had been timely mailed (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Laga v 21st Century Ins. Co., 53 Misc 3d 148[A], 2016 NY Slip Op 51623[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]). Plaintiff's remaining contentions lack merit.

Accordingly, the order, insofar as appealed from, is affirmed.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 03, 2017