Goldstar Equip., Inc. v Mercury Cas. Co.

[*1] Goldstar Equip., Inc. v Mercury Cas. Co. 2018 NY Slip Op 50576(U) Decided on April 13, 2018 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 13, 2018
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : DAVID ELLIOT, J.P., MICHAEL L. PESCE, BERNICE D. SIEGAL, JJ
2016-88 K C NO.

Goldstar Equipment, Inc., as Assignee of Keith Williams, Appellant,

Mercury Casualty Co., Respondent. Gary Tsirelman, P.C. (Irena Golodkeyer and Douglas Mace of counsel), for appellant. Bruno, Gerbino & Soriano, LLP (Nathan Shapiro and Matthew Smith of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Richard Montelione, J.), entered September 15, 2015. The order granted defendant's 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 appeals from an order of the Civil Court which granted defendant's motion for summary judgment dismissing the complaint. The Civil Court found that defendant had timely and properly denied the claims at issue on the ground that plaintiff's assignor had failed to comply with a condition precedent to coverage, in that the assignor had failed to appear for duly scheduled examinations under oath (EUOs).

Contrary to plaintiff's assertion, defendant established that the EUO scheduling letters and the denial of the claim forms had been timely mailed (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; 11 NYCRR 65-3.5 [b]; 65-3.8 [l]). The affirmation of defendant's attorney, who had been present at the court reporting office to conduct the EUO of the assignor on the scheduled dates, was sufficient to establish that the assignor had failed to appear. To the extent that plaintiff asserts that defendant did not demonstrate that the assignor's failure to appear was willful, we note that defendant established that defendant complied with the regulations (11 NYCRR part 65), and that there is no requirement to establish willfulness (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559 [2011]; Metro Health Prods., Inc. v State Farm Mut. Auto. Ins. Co., 49 Misc 3d 130[A], 2015 NY Slip Op 51419[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; see also Interboro Ins. Co. v Clennon, 113 AD3d 596 [2014]).

Accordingly, the order is affirmed.

ELLIOT, J.P., PESCE and SIEGAL, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: April 13, 2018