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Allay Med. Servs. v. Metro. Gen. Ins. Co.

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
Oct 11, 2019
65 Misc. 3d 133 (N.Y. App. Term 2019)

Opinion

2017-2389 K C

10-11-2019

ALLAY MEDICAL SERVICES, P.C., as Assignee of Mills, Keith A., Respondent, v. METROPOLITAN GENERAL INSURANCE COMPANY, Appellant.

Bruno, Gerbino & Soriano, LLP (Nathan Shapiro of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent.


Bruno, Gerbino & Soriano, LLP (Nathan Shapiro of counsel), for appellant.

The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent.

PRESENT: MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, BERNICE D. SIEGAL, JJ.

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

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order of the Civil Court as denied defendant's cross motion which had sought summary judgment dismissing the complaint on the ground that plaintiff's assignor had failed to appear for duly scheduled examinations under oath (EUOs).

In its cross motion, defendant established that initial and follow-up letters scheduling an EUO had been timely mailed (see St. Vincent's Hosp. of Richmond v. Government Empls. Ins. Co. , 50 AD3d 1123 [2008] ); that plaintiff's assignor had failed to appear on either date (see Stephen Fogel Psychological, P.C. v. Progressive Cas. Ins. Co. , 35 AD3d 720 [2006] ); and that the claims had been timely denied on that ground (see St. Vincent's Hosp. of Richmond , 50 AD3d 1123 ). As plaintiff failed to raise a triable issue of fact in opposition to defendant's cross motion, the cross motion should have been granted.

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

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


Summaries of

Allay Med. Servs. v. Metro. Gen. Ins. Co.

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
Oct 11, 2019
65 Misc. 3d 133 (N.Y. App. Term 2019)
Case details for

Allay Med. Servs. v. Metro. Gen. Ins. Co.

Case Details

Full title:Allay Medical Services, P.C., as Assignee of Mills, Keith A., Respondent…

Court:SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Date published: Oct 11, 2019

Citations

65 Misc. 3d 133 (N.Y. App. Term 2019)
2019 N.Y. Slip Op. 51617
119 N.Y.S.3d 3