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Longevity Med. Supply, Inc. v. Geico Ins. Co.

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
Mar 16, 2015
2015 N.Y. Slip Op. 50392 (N.Y. App. Term 2015)

Opinion

2012-2096 Q C

03-16-2015

Longevity Medical Supply, Inc. as Assignee of BARRON CUNNINGHAM, Appellant, v. Geico Ins. Co., Respondent.


PRESENT: : , ALIOTTA and SOLOMON, JJ.

Appeal from an order of the Civil Court of the City of New York, Queens County (Barry A. Schwartz, J.), entered August 14, 2012. 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. The Civil Court denied plaintiff's motion and granted defendant's cross motion.

On appeal, plaintiff argues that defendant failed to establish that plaintiff's assignor had failed to appear for duly scheduled examinations under oath (EUOs) and that, as a result, plaintiff's motion for summary judgment should have been granted and defendant's cross motion for summary judgment dismissing the complaint should have been denied. Contrary to plaintiff's contention, the affidavits submitted by defendant were sufficient to establish that plaintiff's assignor had failed to appear for the duly scheduled EUOs. Since an assignor's appearance at an EUO "is a condition precedent to the insurer's liability on the policy" (Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 722 [2006]), the order is affirmed.

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

Decision Date: March 16, 2015


Summaries of

Longevity Med. Supply, Inc. v. Geico Ins. Co.

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
Mar 16, 2015
2015 N.Y. Slip Op. 50392 (N.Y. App. Term 2015)
Case details for

Longevity Med. Supply, Inc. v. Geico Ins. Co.

Case Details

Full title:Longevity Medical Supply, Inc. as Assignee of BARRON CUNNINGHAM…

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

Date published: Mar 16, 2015

Citations

2015 N.Y. Slip Op. 50392 (N.Y. App. Term 2015)