Jamaica Wellness Med., P.C. v. ELRAC, Inc.

• Court: Appellate Terms of the Supreme Court of New York
• Decided: November 16, 2018
• Docket: 2018 NYSlipOp 51637(U)
• Status: Published

Opinion

Jamaica Wellness Medical, P.C., as Assignee of Anthony Joseph, Appellant,

against

ELRAC, Inc., Respondent.

Kopelevich & Feldsherova, P.C. (David Landfair of counsel), for appellant. Smith & Brink, P.C., for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered April 12, 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 had failed to appear for duly scheduled examinations under oath (EUOs).

Contrary to plaintiff's contention, defendant's moving papers demonstrated that defendant had timely mailed both the EUO scheduling letters and the denial of claim forms (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]), and that plaintiff had failed to appear for the duly scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). As plaintiff's opposing papers failed to raise a triable issue of fact, the Civil Court properly granted defendant's motion.

Accordingly, the order is affirmed.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 16, 2018