Right Aid Med. Supply Corp. v. Ameriprise Auto & Home

• Court: Appellate Terms of the Supreme Court of New York
• Decided: August 2, 2019
• Docket: 2019 NYSlipOp 51270(U)
• Status: Published

Opinion

Right Aid Medical Supply Corp., as Assignee of Kusi Comfort, Respondent,

against

Ameriprise Auto & Home, 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 (Robin Kelly Sheares, J.), entered April 28, 2017, deemed from a judgment of that court entered June 21, 2017 (see CPLR 5501 [c]). The judgment, entered pursuant to the April 28, 2017 order denying defendant's motion for summary judgment dismissing the complaint and granting plaintiff's cross motion for summary judgment, awarded plaintiff the principal sum of $1,963.14.

ORDERED that the judgment is reversed, with $30 costs, the order entered April 28, 2017 is vacated, defendant's motion for summary judgment dismissing the complaint is granted, and plaintiff's cross motion for summary judgment is denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court denying defendant's motion which had sought summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs) and granted plaintiff's cross motion for summary judgment.

In its 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 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). Contrary to the finding of the Civil Court, the transcript of the second EUO does not state that [*2]the EUO, which was scheduled to commence at 10 a.m., "was commenced" at 10:51 a.m. Rather it was at 10:51 a.m. that the attorney began putting his statement on the record, at which point he stated that he had been waiting approximately an hour for plaintiff to appear. As plaintiff failed to raise a triable issue of fact in opposition to defendant's motion, defendant is entitled to summary judgment dismissing the complaint.

Accordingly, the judgment is reversed, the order entered April 28, 2017 is vacated, defendant's motion for summary judgment dismissing the complaint is granted, and plaintiff's cross motion for summary judgment is denied.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: August 02, 2019