Opinion
No. 2020-574 K C
07-15-2022
Warton Supplies, Inc., as Assignee of Mervette Millien, Appellant, v. GEICO Indemnity Company, Respondent.
Kopelevich & Feldsherova, P.C. (David Landfair of counsel), for appellant. Rivkin Radler, LLP (Stuart M. Bodoff of counsel), for respondent.
Unpublished Opinion
Kopelevich & Feldsherova, P.C. (David Landfair of counsel), for appellant.
Rivkin Radler, LLP (Stuart M. Bodoff of counsel), for respondent.
PRESENT:: THOMAS P. ALIOTTA, P.J., WAVNY TOUSSAINT, DONNA-MARIE E. GOLIA, JJ
Appeal from an order of the Civil Court of the City of New York, Kings County (Ira R. Greenberg, J.), entered December 6, 2019. 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 on the ground that plaintiff failed to appear for duly scheduled examinations under oath (EUOs).
Contrary to plaintiff's contention, the proof submitted by defendant in support of its motion was sufficient to give rise to a presumption that the denial of claim forms had been timely mailed (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 A.D.3d 1123 [2008]; Flushing Traditional Acupuncture, P.C. v GEICO Ins. Co., 69 Misc.3d 140 [A], 2020 NY Slip Op 51337[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]). In addition, to the extent plaintiff also asserts that, pursuant to CPLR 2106 (a), the affirmation that defendant submitted to establish that plaintiff had failed to appear for the EUOs was not admissible since the attorney was employed by a law firm as "staff counsel" to defendant, such an argument lacks merit (see Matter of Reid v Rochdale Vil., Inc., 137 A.D.3d 797 [2016]; Warton Supplies, Inc. v GEICO (Gov Empls.), 76 Misc.3d 146[A], 2021 NY Slip Op 51253[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]).
Accordingly, the order is affirmed.
ALIOTTA, P.J., TOUSSAINT and GOLIA, JJ., concur.