| Sunlight Med. Care, P.C. v Esurance Ins. Co. |
| 2015 NY Slip Op 51410(U) [49 Misc 3d 130(A)] |
| Decided on September 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
Appeal from an order of the Civil Court of the City of New York, Queens County (Ulysses Bernard Leverett, J.), entered June 14, 2013. The order denied plaintiff's motion for summary judgment and granted a cross motion by defendant Esurance Insurance Company for summary judgment dismissing so much of the complaint as was asserted against it.
ORDERED that the order is affirmed, with $25 costs.
In this action by a provider to, among other things, recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, and defendant Esurance Insurance Company (Esurance) cross-moved for summary judgment dismissing so much of the complaint as was asserted against it, arguing that plaintiff's assignor had failed to appear for duly scheduled examinations under oath (EUOs). The Civil Court denied plaintiff's motion and granted Esurance's cross motion.
Plaintiff's sole argument on appeal is that Esurance mailed the EUO scheduling letters to the wrong address, and therefore that plaintiff's motion should have been granted and Esurance's cross motion denied. However, the record demonstrates conclusively that Esurance mailed the letters to the address provided by plaintiff on its bills and by plaintiff's assignor on both her prescribed application for no-fault benefits (NF-2) and her signed assignment of benefits. Thus, plaintiff has not demonstrated that Esurance did not give the assignor proper notice of the EUOs. Consequently, the branch of plaintiff's motion seeking summary judgment against Esurance was properly denied and Esurance's cross motion for summary judgment dismissing so much of the complaint as was asserted against it was properly granted.
While plaintiff argues on appeal that the branch of its motion seeking summary judgment against its assignor should have been granted, it offers no reasoning in support of its argument. We note, however, that while plaintiff purports to sue its assignor pursuant to the assignment it received from the assignor, such a cause of action is based upon plaintiff's own alleged rights against its assignor, and is not properly based upon the assignment.
Accordingly, the order is affirmed.
Pesce, P.J., Aliotta and Solomon, JJ., concur.