Opinion
2013-1498 Q C
03-16-2016
New Way Medical Supply Corp. as Assignee of MICHEL EDNER, Appellant, v. American Transit Ins. Co., Respondent.
PRESENT: :
Appeal from an order of the Civil Court of the City of New York, Queens County (William A. Viscovich, J.), entered March 25, 2013. The order granted defendant's 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 appeals from an order of the Civil Court which granted defendant's motion for summary judgment dismissing the complaint.
Contrary to plaintiff's contention, defendant established that the examination under oath (EUO) scheduling letters had been timely mailed (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 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 AD3d 720 [2006]). Thus, defendant demonstrated that plaintiff's assignor had failed to comply with a condition precedent to coverage (id. at 722). As defendant timely denied (see St. Vincent's Hosp. of Richmond, 50 AD3d 1123) the claims on that ground, and plaintiff failed to raise a triable issue of fact in opposition to defendant's motion, defendant was entitled to summary judgment dismissing the complaint.
Accordingly, the order is affirmed.
Pesce, P.J., Aliotta and Elliot, JJ., concur. Decision Date: March 16, 2016