Royal Med. Supply, Inc. v. Nationwide Gen. Ins. Co.

Full title: Royal Medical Supply, Inc., as Assignee of Salvayra Dalmasi, Appellant, v…

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

Date published: Sep 22, 2017

2017 N.Y. Slip Op. 51235 (N.Y. App. Term 2017)

66 N.Y.S.3d 655

Opinion

2014-1101 K C

09-22-2017

Royal Medical Supply, Inc., as Assignee of Salvayra Dalmasi, Appellant, v. Nationwide General Insurance Company, Respondent.

Gary Tsirelman, P.C. (Douglas Mace, Esq.), for appellant. Epstein, Gialleonardo, Harms & McDonald (Yael Ryzowy, Esq.), for respondent.

MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN SOLOMON, JJ

PRESENT: :

Gary Tsirelman, P.C. (Douglas Mace, Esq.), for appellant.

Epstein, Gialleonardo, Harms & McDonald (Yael Ryzowy, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Harriet L. Thompson, J.), entered February 14, 2014. 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 on the ground that plaintiff's assignor had failed to appear for duly scheduled examinations under oath (EUOs).

Contrary to plaintiff's argument on appeal, the proof submitted by defendant in support of its motion was sufficient to demonstrate that plaintiff's assignor had failed to appear for the EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Moreover, plaintiff's arguments on appeal as to defendant's proof of mailing of the EUO scheduling letters and the denial of claim forms lack merit.

Accordingly, the order is affirmed.

PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur. ENTER: Paul Kenny Chief Clerk Decision Date: September 22, 2017