Opinion
No. 2011–3143 RI C.
12-17-2014
MML MEDICAL CARE, P.C. as Assignee of Steve Holley, Respondent, v. PRAETORIAN INSURANCE COMPANY, Appellant.
Opinion
Appeal from orders of the Civil Court of the City of New York, Richmond County (Philip S. Straniere, J.), entered October 20, 2011 and October 31, 2011, respectively. The order entered October 20, 2011 denied defendant's motion for summary judgment dismissing the complaint. The order entered October 31, 2011 granted plaintiff's cross motion for summary judgment.
ORDERED that the orders are reversed, with $30 costs, 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 entered October 20, 2011 which denied defendant's motion for summary judgment dismissing the complaint and from an order of the same court entered October 31, 2011 which granted plaintiff's cross motion for summary judgment.
Defendant established that it had timely mailed (see St. Vincent's Hosp. of Richmond v. Government Empls. Ins. Co., 50 AD3d 1123 [2008] ; Delta Diagnostic Radiology, P.C. v. Chubb Group of Ins., 17 Misc.3d 16 [App Term, 2d & 11th Jud Dists 2007] ) letters and follow-up letters scheduling examinations under oath (EUOs) by both first class and certified mail, return receipt requested. Defendant further demonstrated that it had timely mailed (see St. Vincent's Hosp. of Richmond, 50 AD3d 1123 ; Delta Diagnostic Radiology, P.C., 17 Misc.3d 16 ) the denial of claim forms, which denied the claims on the ground that plaintiff's assignor had failed to appear for duly scheduled EUOs. In support of its motion, defendant also submitted certified transcripts of the scheduled EUOs, which demonstrated that plaintiff's assignor had failed to appear. Plaintiff does not claim to have responded in any way to the EUO requests. As a result, defendant established its prima facie entitlement to judgment as a matter of law (see 11 NYCRR 65–1.1 ; Stephen Fogel Psychological, P.C. v. Progressive Cas. Ins. Co., 35 AD3d 720 [2006] ). Plaintiff failed to raise a triable issue of fact in opposition.
While the Civil Court held that the tracking numbers associated with the copies of the letters which had been sent by certified mail, return receipt requested, reflected that these copies of the EUO scheduling letters had apparently not been delivered to the assignor, such a fact, even if true, would not excuse the failure of plaintiff's assignor to appear for the duly scheduled EUOs since the record does not contain any evidence showing that the mailing of the EUO scheduling letters to plaintiff's assignor by first class mail had been insufficient.
Accordingly, the orders are reversed, defendant's motion for summary judgment dismissing the complaint is granted, and plaintiff's cross motion for summary judgment is denied.
PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.