Bonne Santo, Inc. v All Car Rent A Car

[*1] Bonne Santo, Inc. v All Car Rent A Car 2018 NY Slip Op 51553(U) Decided on November 2, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 2, 2018
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2016-474 K C

Bonne Santo, Inc., as Assignee of David Olivier, Appellant,

against

All Car Rent A Car, Respondent.

Gabriel & Shapiro, LLC (Steven F. Palumbo of counsel), for appellant. Miller, Leiby & Associates, P.C. (Eve Pachter of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Steven Z. Mostofsky, J.), entered February 4, 2016. 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 on the ground that plaintiff's assignor had failed to appear for duly scheduled examinations under oath (EUO).

Plaintiff's sole argument—that defendant is precluded from raising its proffered defense—lacks merit, as defendant timely mailed both initial and follow-up EUO requests and initial and follow-up requests for written verification (see 11 NYCRR 65-3.5 [b]; 65-3.6 [b]), thereby tolling its time to pay or deny the claims at issue (see Longevity Med. Supply, Inc. v Citiwide Auto Leasing, 58 Misc 3d 142[A] 2017 NY Slip Op 51880[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; Alev Med. Supply, Inc. v New York Cent. Mut. Fire Ins. Co., 38 Misc 3d 143[A], 2013 NY Slip Op 50258[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]).

Accordingly, the order is affirmed.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 02, 2018