T & S Med. Supply Corp. v. Ameriprise Auto & Home

• Court: Appellate Terms of the Supreme Court of New York
• Decided: September 15, 2017
• Docket: 2017 NYSlipOp 51195(U)
• Status: Published

Opinion

T & S Medical Supply Corp., as Assignee of Lancelot, Lynch, Appellant,

against

Ameriprise Auto & Home, Respondent.

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Bruno, Gerbino & Soriano, LLP (Mitchell L. Kaufman, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Jodi Orlow, J.), entered June 25, 2014. The order denied plaintiff's motion for summary judgment and granted defendant's cross 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 denied plaintiff's motion for summary judgment, and granted defendant's cross 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).

Contrary to plaintiff's sole contention on appeal with respect to defendant's cross motion, the affirmation submitted by defendant was sufficient to establish plaintiff's assignor's failure to appear for the EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).

Accordingly, the order is affirmed.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: September 15, 2017