Ultimate Health Prods., Inc. v. American Tr. Ins. Co.

• Court: Appellate Terms of the Supreme Court of New York
• Decided: March 15, 2016
• Docket: 2016 NYSlipOp 50330(U)
• Status: Published

Opinion

Ultimate Health Products, Inc. as Assignee of Tamezan Osmali, Appellant,

against

American Transit Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Barry A. Schwartz, J.), entered May 10, 2013. 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 moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint on the ground that it had timely and properly denied the claim based on plaintiff's assignor's failure to appear for examinations under oath (EUOs). The Civil Court denied plaintiff's motion and granted defendant's cross motion.

Contrary to plaintiff's contention, defendant established that the EUO scheduling letters had been timely mailed (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) and that plaintiff's assignor had failed to appear for the duly scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Since defendant had timely denied (see St. Vincent's Hosp. of Richmond, 50 AD3d 1123) the claim on the ground that plaintiff's assignor had failed to appear for duly scheduled EUOs, defendant demonstrated that plaintiff's assignor had failed to comply with a condition precedent to coverage (see Stephen Fogel Psychological, P.C., 35 AD3d at 722). As plaintiff, in opposition, failed to raise a triable issue of fact, defendant was entitled to summary judgment dismissing the complaint.

Accordingly, the order is affirmed.

Pesce, P.J., Aliotta and Elliot, JJ., concur.

Decision Date: March 15, 2016