Opinion
No. 570398/11.
2012-02-22
BATH ORTHO SUPPLY, INC. a/a/o Clarence Echols, Plaintiff–Respondent, v. NEW YORK CENTRAL MUTUAL FIRE INSURANCE COMPANY, Defendant–Appellant.
Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Robert R. Reed, J.), entered January 31, 2011, which denied its motion for summary judgment dismissing the complaint.
Present HUNTER, JR., J.P., SHULMAN, TORRES, JJ.
PER CURIAM.
Order (Robert R. Reed, J.), entered January 31, 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 properly mailed the notices for an examination under oath (EUO) 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],lv denied17 NY3d 705 [2011];cf. Stephen Fogel Psychological, P.C. v. Progressive Cas. Ins. Co., 35 AD3d 720 [2006] ). In opposition, plaintiff failed to raise a triable issue as to the reasonableness of the requests or the assignor's failure to attend the EUOs. Contrary to plaintiff's contention, defendant was not required to demonstrate that the assignor's failure to appear for the EUOs was willful ( see Unitrin at 561).