Opinion
2014-1030 K C
09-08-2017
LMS Acupuncture, P.C., as Assignee of Diaz, Charles, Respondent, v. State Farm Mutual Automobile Ins. Co., Appellant.
Rivkin Radler, LLP (Stuart M. Bodoff, Esq.), for appellant. The Rybak Firm, PLLC (Damin J. Toell, Esq.), for respondent.
PRESENT: :
Rivkin Radler, LLP (Stuart M. Bodoff, Esq.), for appellant.
The Rybak Firm, PLLC (Damin J. Toell, Esq.), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Devin P. Cohen, J.), entered February 7, 2014. The order denied defendant's motion for summary judgment dismissing the complaint.
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 sought summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs).
In its motion, defendant established that initial and follow-up letters scheduling an EUO had been timely mailed (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]); that plaintiff had failed to appear on either date (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]); and that the claims had been timely denied on that ground (see St. Vincent's Hosp. of Richmond, 50 AD3d 1123). As plaintiff failed to raise a triable issue of fact in opposition to defendant's motion, defendant is entitled to summary judgment dismissing the complaint.
Accordingly, the order is reversed and defendant's motion for summary judgment dismissing the complaint is granted.
PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur. Paul Kenny Chief Clerk Decision Date: September 08, 2017