Opinion
2016-2132 K C
03-01-2019
OLEG'S ACUPUNCTURE, P.C., as Assignee of Shawnta Fonseca, Respondent, v. STATE FARM MUTUAL AUTOMOBILE INS. CO., Appellant.
Rivkin Radler, LLP (Stuart M. Bodoff and Cheryl F. Korman of counsel), for appellant. Gary Tsirelman, P.C. (Douglas Mace of counsel), for respondent.
Rivkin Radler, LLP (Stuart M. Bodoff and Cheryl F. Korman of counsel), for appellant.
Gary Tsirelman, P.C. (Douglas Mace of counsel), for respondent.
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, BERNICE D. SIEGAL, JJ
Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered June 10, 2016. 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 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 moved for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs). By order entered June 10, 2016, the Civil Court denied the motion, but found, in effect pursuant to CPLR 3212 (g), that defendant had established the timely and proper mailing of the EUO scheduling letters and denial of claim forms, as well as plaintiff's failure to appear for the EUOs. The Civil Court further found that the only remaining issues for trial were plaintiff's prima facie case and "an issue of fact regarding the discrepancy between the person stated to be the contact for defense counsel in the EUO request letters and the person signing the affirmation regarding plaintiff's failure to appear." Defendant appeals, contending that it was entitled to summary judgment dismissing the complaint.
For the reasons stated in Oleg's Acupuncture P.C., as Assignee of Kevin Adams v. State Farm Mut. Auto. Ins. Co. (––– Misc 3d ––––, 2019 NY Slip Op –––– [appeal No. 2016-2048 K C], decided herewith), the order, insofar as appealed from, is reversed and defendant's motion for summary judgment dismissing the complaint is granted.
PESCE, P.J., ALIOTTA and SIEGAL, JJ., concur.