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Quality Psychological Services, P.C. As Assignee of Tanisha Mighten v. Metropolitan Casualty Insurance Company

February 19, 2013

QUALITY PSYCHOLOGICAL SERVICES, P.C. AS ASSIGNEE OF TANISHA MIGHTEN,
RESPONDENT, --
v.
METROPOLITAN CASUALTY INSURANCE COMPANY,
APPELLANT.



Appeal from an order of the Civil Court of the City of New York, Kings County (Johnny Lee Baynes, J.), entered November 29, 2010.

Quality Psychological Servs., P.C. v Metropolitan Cas. Ins. Co.

Decided on February 19, 2013

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This opinion is uncorrected and will not be published in the printed Official Reports.

PRESENT: PESCE, P.J., RIOS and SOLOMON, JJ

The order, insofar as appealed from, denied defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order of the Civil Court as denied defendant's motion for summary judgment dismissing the complaint.

Defendant moved for summary judgment on the ground that it had timely denied plaintiff's claims based upon the assignor's failure to appear for duly scheduled examinations under oath (EUOs). However, defendant failed to establish that the EUO scheduling letters had been mailed prior to the dates of the scheduled EUOs. As a result, defendant failed to establish, as a matter of law, its entitlement to summary judgment dismissing the complaint (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Accordingly, the order, insofar as appealed from, is affirmed.

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

Decision Date: February ...


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