Charles Deng Acupuncture, P.C. v. ELRAC, Inc.

• Court: Appellate Terms of the Supreme Court of New York
• Decided: May 25, 2018
• Docket: 2018 NYSlipOp 50774(U)
• Status: Published

Opinion

Charles Deng Acupuncture, P.C., as Assignee of Sainphor, Anthony, Appellant,

against

ELRAC, Inc., Respondent.

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Brand, Glick & Brand, for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered October 28, 2015. The order granted defendant's motion for summary judgment dismissing the complaint and denied plaintiff's cross motion for summary judgment.

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 (EUOs), and denied plaintiff's cross motion for summary judgment.

Contrary to plaintiff's only argument as to defendant's motion, the proof submitted by defendant was sufficient to demonstrate that plaintiff's assignor had failed to appear for the scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; Active Chiropractic, P.C. v Praetorian Ins. Co., 43 Misc 3d 134[A], 2014 NY Slip Op 50634[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]).

Accordingly, the order is affirmed.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: May 25, 2018