Allay Med. Servs., P.C. v Metropolitan Gen. Ins. Co.

[*1] Allay Med. Servs., P.C. v Metropolitan Gen. Ins. Co. 2019 NY Slip Op 51617(U) Decided on October 11, 2019 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 11, 2019
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, BERNICE D. SIEGAL, JJ
2017-2389 K C

Allay Medical Services, P.C., as Assignee of Mills, Keith A., Respondent,

against

Metropolitan General Insurance Company, Appellant.

Bruno, Gerbino & Soriano, LLP (Nathan Shapiro of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Louis L. Nock, J.), entered September 11, 2017. The order, insofar as appealed from, denied defendant's cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant's cross motion for summary judgment is 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 defendant's cross motion which had sought summary judgment dismissing the complaint on the ground that plaintiff's assignor had failed to appear for duly scheduled examinations under oath (EUOs).

In its cross motion, 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's assignor 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). As plaintiff failed to raise a triable issue of fact in opposition to defendant's cross motion, the cross motion should have been granted.

Accordingly, the order, insofar as appealed from, is reversed and defendant's cross motion for summary judgment is granted.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: October 11, 2019