| Dowd v Praetorian Ins. Co. |
| 2012 NY Slip Op 51160(U) [36 Misc 3d 126(A)] |
| Decided on June 25, 2012 |
| Appellate Term, First 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
Defendant appeals from an order of the Civil Court of the City of New York, Bronx
County (Ben R. Barbato, J.), entered October 3, 2011, which denied its motion for
summary judgment dismissing the complaint.
Per Curiam.
Order (Ben R. Barbato, J.), entered October 3, 2011, reversed, with $10 costs, motion granted and complaint dismissed. The Clerk is directed to enter judgment accordingly.
The defendant-insurer made a prima facie showing of entitlement to summary
judgment dismissing the action for first-party no-fault benefits by establishing that it
timely and properly mailed the notices for independent medical examinations (IMEs) and
examinations under oath (EUOs) to plaintiff's assignor, and that the assignor failed to
appear (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82
AD3d 559, 560 [2011]; cf. Stephen Fogel Psychological, P.C. v Progressive Cas. Ins.
Co., 35 AD3d 720, 721 [2006]). In opposition, plaintiff did not specifically deny the
assignor's nonappearance or otherwise raise a triable issue with respect thereto, or as to
the mailing or reasonableness of the underlying notices (see Unitrin at 560).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: June 25, 2012