AB Quality Health Supply Corp. v. Nationwide Ins.

AB Quality Health Supply Corp. v Nationwide Ins. (2022 NY Slip Op 50558(U)) [*1] AB Quality Health Supply Corp. v Nationwide Ins. 2022 NY Slip Op 50558(U) [75 Misc 3d 136(A)] Decided on June 3, 2022 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports. Decided on June 3, 2022 SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS PRESENT: : THOMAS P. ALIOTTA, P.J., WAVNY TOUSSAINT, DONNA-MARIE E. GOLIA, JJ 2019-1292 K C AB Quality Health Supply Corp., as Assignee of Ferril, Gabriel J., Respondent, against Nationwide Ins., Appellant. Hollander Legal Group, P.C. (Allan S. Hollander of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent (no brief filed). Appeal from an order of the Civil Court of the City of New York, Kings County (Harriet L. Thompson, J.), entered November 20, 2018. The order, insofar as appealed from and as limited by the brief, denied defendant's motion for summary judgment dismissing the complaint. ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant's motion for summary judgment dismissing the complaint is granted. In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff's assignor had failed to appear for duly scheduled examinations under oath (EUOs), and plaintiff cross-moved for summary judgment. By order entered November 20, 2018, the Civil Court denied the motion and cross motion, but found, in effect pursuant to CPLR 3212 (g), that defendant had timely denied the claims and that the only issues remaining for trial were the mailing of the EUO scheduling letters and proof that plaintiff's assignor had failed to appear for the EUOs. As limited by its brief, defendant appeals from so much of the order as denied its motion. We find that defendant established that the 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, 721 [2006]). Consequently, as plaintiff failed to raise a triable issue of fact in opposition to defendant's motion or otherwise challenge the implicit CPLR 3212 (g) findings in defendant's favor, defendant is entitled to summary judgment dismissing the complaint. Accordingly, the order, insofar as appealed from, is reversed and defendant's motion for summary judgment dismissing the complaint is granted. ALIOTTA, P.J., TOUSSAINT and GOLIA, JJ., concur. ENTER: Paul Kenny Chief Clerk Decision Date: June 3, 2022