Opinion
No. 2020-744 K C
06-17-2022
Hand By Hand PT, P.C., as Assignee of Luis Martinez, Respondent, v. Nationwide Property and Casualty Insurance Company, Appellant.
Hollander Legal Group, P.C. (Allan S. Hollander and Christopher Volpe of counsel), for appellant. Kopelevich & Feldsherova, P.C. (David Landfair of counsel), for respondent.
Unpublished Opinion
Hollander Legal Group, P.C. (Allan S. Hollander and Christopher Volpe of counsel), for appellant.
Kopelevich & Feldsherova, P.C. (David Landfair of counsel), for respondent.
PRESENT:: THOMAS P. ALIOTTA, P.J., DONNA-MARIE E. GOLIA, CHEREÉ A. BUGGS, JJ
Appeal from an order of the Civil Court of the City of New York, Kings County (Jill R. Epstein, J.), dated December 4, 2019. The order denied defendant's motion for summary judgment dismissing the complaint and, upon a search of the record, granted summary judgment to plaintiff.
ORDERED that the order is reversed, with $30 costs, and defendant's motion for summary judgment dismissing the complaint is granted.
In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court denying defendant's motion which had sought summary judgment dismissing the complaint on the ground that plaintiff failed to appear for duly scheduled examinations under oath (EUOs) and, upon a search of the record, granted summary judgment to plaintiff.
A review of the record indicates that the proof submitted by defendant in support of its motion for summary judgment dismissing the complaint demonstrated that defendant's initial and follow-up letters scheduling the EUOs had been timely mailed (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 A.D.3d 1123 [2008]), that plaintiff failed to appear on either date (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 A.D.3d 720 [2006]; TAM Med. Supply Corp. v 21st Century Ins. Co., 57 Misc.3d 149 [A], 2017 NY Slip Op 51510[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]), and that the claims were timely denied on that ground (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 A.D.3d 1123). As plaintiff's opposition papers failed to rebut defendant's prima facie showing, defendant's motion for summary judgment dismissing the complaint should have been granted.
Accordingly, the order is reversed and defendant's motion for summary judgment dismissing the complaint is granted.
ALIOTTA, P.J., GOLIA and BUGGS, JJ., concur.