Bento Ortho, Inc. v. Ameriprise Auto & Home

• Court: Appellate Terms of the Supreme Court of New York
• Decided: July 12, 2019
• Docket: 2019 NYSlipOp 51160(U)
• Status: Published

Opinion

Bento Ortho, Inc., as Assignee of Arjona, Suidonia, Appellant,

against

Ameriprise Auto & Home, Respondent.

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered December 1, 2016. The order granted defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, with $30 costs, and defendant's motion for summary judgment dismissing the complaint is denied.

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 (EUOs).

Plaintiff correctly argues that defendant's motion failed to establish that defendant had timely denied plaintiff's claim after plaintiff's assignor had allegedly failed to appear at both an initial and a follow-up EUO. As defendant did not demonstrate that it is not precluded from raising its proffered defense (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2009]), defendant's motion for summary judgment dismissing the complaint should have been denied.

Accordingly, the order is reversed and defendant's motion for summary judgment dismissing the complaint is denied.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: July 12, 2019