Opinion
2018-2004 K C
08-28-2020
NL QUALITY MEDICAL, P.C., as Assignee of Sumlar, Tanya, Respondent, v. GEICO INS. CO., Appellant.
Rivkin Radler, LLP (Stuart M. Bodoff and Cheryl F. Korman of counsel), for Appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for Respondent.
Rivkin Radler, LLP (Stuart M. Bodoff and Cheryl F. Korman of counsel), for Appellant.
The Rybak Firm, PLLC (Damin J. Toell of counsel), for Respondent.
PRESENT: THOMAS P. ALIOTTA, P.J., DAVID ELLIOT, WAVNY TOUSSAINT, JJ.
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), and plaintiff cross-moved for summary judgment. Defendant appeals from so much of an order of the Civil Court as denied defendant's motion.
The affidavit submitted by defendant established that the EUO scheduling letters and the denial of claim forms had been timely mailed in accordance with defendant's standard office practices and procedures (see St. Vincent's Hosp. of Richmond v. Government Empls. Ins. Co. , 50 AD3d 1123 [2008] ). In addition, the affirmation submitted by defendant's attorney, who was present in her office to conduct the EUO of plaintiff on the scheduled dates, was sufficient to establish that plaintiff had failed to appear on those dates. As a result, defendant demonstrated its prima facie entitlement to summary judgment (see Interboro Ins. Co. v. Clennon , 113 AD3d 596, 597 [2014] ; Gentlecare Ambulatory Anesthesia Servs. v. GEICO Ins. Co. , 63 Misc 3d 152[A], 2019 NY Slip Op 50759[A] [App Term, 2d Dept., 2d, 11th & 13th Jud Dists 2019]; Palafox PT, P.C. v. State Farm Mut. Auto. Ins. Co. , 49 Misc 3d 144[A], 2015 NY Slip Op 51653[U] [App Term, 2d Dept., 2d, 11th & 13th Jud Dists 2015] ). Plaintiff failed to raise a triable issue of fact in opposition to defendant's motion.
Accordingly, the order, insofar as appealed from, is reversed and defendant's motion for summary judgment dismissing the complaint is granted.
ALIOTTA, P.J., ELLIOT and TOUSSAINT, JJ., concur.