Opinion
No. 2019-1292 K C
06-03-2022
AB Quality Health Supply Corp., as Assignee of Ferril, Gabriel J., Respondent, v. Nationwide Ins., Appellant.
Hollander Legal Group, P.C. (Allan S. Hollander of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent (no brief filed).
Unpublished Opinion
Hollander Legal Group, P.C. (Allan S. Hollander of counsel), for appellant.
The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent (no brief filed).
PRESENT:: THOMAS P. ALIOTTA, P.J., WAVNY TOUSSAINT, DONNA-MARIE E. GOLIA, JJ
Appeal from an order of the Civil Court of the City of New York, Kings County (Harriet L. Thompson, J.), entered November 20, 2018. The order, insofar as appealed from and as limited by the brief, denied defendant's motion for summary judgment dismissing the complaint.
ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant's motion for summary judgment dismissing the complaint is granted.
In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff's assignor had failed to appear for duly scheduled examinations under oath (EUOs), and plaintiff cross-moved for summary judgment. By order entered November 20, 2018, the Civil Court denied the motion and cross motion, but found, in effect pursuant to CPLR 3212 (g), that defendant had timely denied the claims and that the only issues remaining for trial were the mailing of the EUO scheduling letters and proof that plaintiff's assignor had failed to appear for the EUOs. As limited by its brief, defendant appeals from so much of the order as denied its motion.
We find that defendant established that the EUO scheduling letters had been timely mailed (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 A.D.3d 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 A.D.3d 720, 721 [2006]). Consequently, as plaintiff failed to raise a triable issue of fact in opposition to defendant's motion or otherwise challenge the implicit CPLR 3212 (g) findings in defendant's favor, defendant is entitled to summary judgment dismissing the complaint.
Accordingly, the order, insofar as appealed from, is reversed and defendant's motion for summary judgment dismissing the complaint is granted.
ALIOTTA, P.J., TOUSSAINT and GOLIA, JJ., concur.