VE Med. Care, P.C. v State Farm Mut. Auto. Ins. Co. (2015 NY Slip Op 50603(U))

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VE Med. Care, P.C. v State Farm Mut. Auto. Ins. Co.

2015 NY Slip Op 50603(U) [47 Misc 3d 140(A)]

Decided on April 16, 2015

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This opinion is uncorrected and will not be published in the printed Official Reports.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 April 16, 2015

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2012-1826 K C

VE Medical Care, P.C. as Assignee of ALEXIS GUERRERO, Appellant,

against

State Farm Mutual Automobile Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Devin P. Cohen, J.), entered March 23, 2012. The order granted defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, without costs, and defendant's motion for summary judgment dismissing the complaint is denied.

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 had failed to appear for duly scheduled examinations under oath (EUOs).

Defendant's motion should have been denied, as defendant failed to establish, as a matter of law, its defense that plaintiff had failed to appear for properly scheduled EUOs (see e.g. Alrof, Inc. v Safeco Natl. Ins. Co., 39 Misc 3d 130[A], 2013 NY Slip Op 50458[U] [App Term, 2d, 11th & 13th Jud Dists 2013]; Bright Med. Supply Co. v IDS Prop. & Cas. Ins. Co., 40 Misc 3d 130[A], 2013 NY Slip Op 51123[U] [App Term, 2d, 11th & 13th Jud Dists 2013]).

Accordingly, the order is reversed and defendant's motion is denied.

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

Decision Date: April 16, 2015