Opinion
No. 2020-411 K C
06-10-2022
Jules Francois Parisien, M.D., as Assignee of Louidor, Patrick, Appellant, v. Ameriprise Auto & Home, Respondent.
The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for appellant. Callinan & Smith, LLP (Matthew J. Smith and Steven Daniel Levy of counsel), for respondent.
Unpublished Opinion
The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for appellant.
Callinan & Smith, LLP (Matthew J. Smith and Steven Daniel Levy of counsel), for respondent.
PRESENT: THOMAS P. ALIOTTA, P.J., MICHELLE WESTON, CHEREÉ A. BUGGS, JJ.
Appeal from an order of the Civil Court of the City of New York, Kings County (Rosemarie Montalbano, J.), entered August 23, 2019. The order granted defendant's motion for leave to reargue its prior motion for summary judgment, which motion had been denied in an order dated June 22, 2018, and, upon reargument, granted defendant's motion for summary judgment dismissing the complaint.
ORDERED that the order entered August 23, 2019 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 entered August 23, 2019 which granted defendant's motion for leave to reargue its prior motion for summary judgment, which motion had been denied in an order dated June 22, 2018, and, upon reargument, granted defendant's motion for summary judgment dismissing the complaint, finding that defendant did not need to provide a basis for the examination under oath (EUO) requests.
The Civil Court did not improvidently exercise its discretion in granting the branch of defendant's motion which was for leave to reargue its motion for summary judgment dismissing the complaint, as the court had overlooked or misapprehended the law when it held that defendant had to establish the reasonableness of the EUO requests (see CPLR 2221[d] [2]; Interboro Ins. Co. v Clennon, 113 A.D.3d 596 [2014]; New Way Med. Supply Corp. v State Farm Mut. Auto. Ins. Co., 64 Misc.3d 136 [A], 2019 NY Slip Op 51158[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; Parisien v Metlife Auto & Home, 54 Misc.3d 143 [A], 2017 NY Slip Op 50208[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]).
Plaintiff also argues that the affirmations submitted by defendant to demonstrate that plaintiff had failed to appear for the EUOs were insufficient because they do not establish that defendant's "attorneys were actually present at the times the EUOs were scheduled to be held." We reject that argument. Defendant submitted the affirmations of two different partners in the law firm representing defendant in this action, each addressing one of the two scheduled EUOs. The first one stated that an EUO was scheduled to take place at 10:00 a.m. in the firm's offices on December 2, 2014; that counsel was present in the office prepared to conduct the EUO on that date; that he would have conducted the EUO if plaintiff had appeared; and that plaintiff did not appear. The second affirmation stated that an EUO was scheduled to take place at 10:00 a.m. in the firm's offices on January 9, 2015; that counsel was present in the office on that date and was in charge of determining whether the EUO would go forward; that if plaintiff had appeared, he would have conducted the EUO or assigned another attorney to conduct it; and that plaintiff did not appear. Contrary to plaintiff's argument, these affirmations were sufficient to demonstrate, prima facie, that plaintiff failed to appear for the EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 A.D.3d 720 [2006]; Gentlecare Ambulatory Anesthesia Servs. v Geico Ins. Co., 57 Misc.3d 150 [A], 2017 NY Slip Op 51518[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]), and plaintiff failed to raise a triable issue of fact in response.
Accordingly, the order is affirmed.
ALIOTTA, P.J., WESTON and BUGGS, JJ., concur.