Adelaida Physical Therapy, P.C.
Ameriprise Auto & Home

Not overruled or negatively treated on appealinfoCoverage
Supreme Court, Appellate Term, Second Dept., 2, 11 & 13 Judicial Dist.Oct 11, 2016
48 N.Y.S.3d 264 (2d Cir. 2016)

No. 2014–535 Q C.


ADELAIDA PHYSICAL THERAPY, P.C., as Assignee of Frederick Guidson, Appellant, v. AMERIPRISE AUTO & HOME, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Jodi Orlow, J.), entered February 6, 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.

Contrary to plaintiff's contention, defendant established that it had timely mailed (see St. Vincent's Hosp. of Richmond v. Government Empls. Ins. Co., 50 AD3d 1123 [2008] ) each of the examination under oath (EUO) scheduling letters by both first-class and certified mail, return receipt requested. While plaintiff asserts that the certified-mail letters were not delivered, such an assertion, even if true, would not excuse the failure of plaintiff to appear for the duly scheduled EUOs, since the record does not contain any evidence showing that the mailing of the EUO scheduling letters to plaintiff by first class mail had been insufficient (MML Med. Care, P.C. v. Praetorian Ins. Co., 46 Misc.3d 127[A], 2014 N.Y. Slip Op 51792[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014] ). Furthermore, contrary to plaintiff's other argument, defendant established, based upon the personal knowledge of the attorney who was responsible for conducting the EUOs at issue, that plaintiff had failed to appear for either of the duly scheduled EUOs (see Stephen Fogel Psychological, P.C. v. Progressive Cas. Ins. Co ., 35 AD3d 720 [2006] ).

Accordingly, the order is affirmed.

PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.