Ultra Ortho Prods., Inc. v. GEICO Ins. Co.

Appellate Terms of the Supreme Court of New York

Ultra Ortho Prods., Inc. v. GEICO Ins. Co.

CourtAppellate Terms of the Supreme Court of New York

DecidedNovember 15, 2019

Docket2019 NYSlipOp 51844(U)

StatusPublished

This text of Ultra Ortho Prods., Inc. v. GEICO Ins. Co. (Ultra Ortho Prods., Inc. v. GEICO Ins. Co.) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Ultra Ortho Prods., Inc. v. GEICO Ins. Co., (N.Y. Ct. App. 2019).

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Opinion

Ultra Ortho Products, Inc., as Assignee of Zacharie Elaine, Respondent,

against

GEICO Ins. Co., Appellant.

Rivkin Radler, LLP (Stuart M. Bodoff 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 (Rosemarie Montalbano, J.), entered June 18, 2018. The order, insofar as appealed from and as limited by the brief, denied defendant's cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant's cross motion for summary judgment dismissing the complaint is granted.

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 plaintiff had failed to appear for duly scheduled examinations under oath (EUOs). By order entered June 18, 2018, the Civil Court denied the motion and cross motion, but found, in effect pursuant to CPLR 3212 (g), that the only issue remaining for trial was whether plaintiff had failed to appear for the scheduled EUOs. Defendant appeals, as limited by its brief, from so much of the order as denied its cross motion.

The proof submitted by defendant was sufficient to demonstrate that plaintiff had failed to appear for the EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; Gentlecare Ambulatory Anesthesia Servs. v GEICO Ins. Co., 59 Misc 3d 152[A], 2018 NY Slip Op 50864[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]), which showing plaintiff failed to rebut. To the extent plaintiff challenges the Civil Court's [*2]implicit CPLR 3212 (g) findings in favor of defendant with respect to the mailing of the EUO scheduling letters and denial of claims forms, the proof submitted by defendant was sufficient to demonstrate that the EUO scheduling letters and denial of claim forms had been timely mailed (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]).

Accordingly, the order, insofar as appealed from, is reversed and defendant's cross motion for summary judgment dismissing the complaint is granted.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 15, 2019

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Ultra Ortho Products, Inc., as Assignee of Zacharie Elaine, Respondent,

against

GEICO Ins. Co., Appellant.

Rivkin Radler, LLP (Stuart M. Bodoff 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 (Rosemarie Montalbano, J.), entered June 18, 2018. The order, insofar as appealed from and as limited by the brief, denied defendant's cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant's cross motion for summary judgment dismissing the complaint is granted.

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 plaintiff had failed to appear for duly scheduled examinations under oath (EUOs). By order entered June 18, 2018, the Civil Court denied the motion and cross motion, but found, in effect pursuant to CPLR 3212 (g), that the only issue remaining for trial was whether plaintiff had failed to appear for the scheduled EUOs. Defendant appeals, as limited by its brief, from so much of the order as denied its cross motion.

The proof submitted by defendant was sufficient to demonstrate that plaintiff had failed to appear for the EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; Gentlecare Ambulatory Anesthesia Servs. v GEICO Ins. Co., 59 Misc 3d 152[A], 2018 NY Slip Op 50864[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]), which showing plaintiff failed to rebut. To the extent plaintiff challenges the Civil Court's [*2]implicit CPLR 3212 (g) findings in favor of defendant with respect to the mailing of the EUO scheduling letters and denial of claims forms, the proof submitted by defendant was sufficient to demonstrate that the EUO scheduling letters and denial of claim forms had been timely mailed (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]).

Accordingly, the order, insofar as appealed from, is reversed and defendant's cross motion for summary judgment dismissing the complaint is granted.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 15, 2019

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