Opinion
No. 2020-152 K C
06-10-2022
Sanford Chiropractic, P.C., as Assignee of Brandon, Donald, Appellant, v. State Farm Mutual Automobile Ins. Co., Respondent.
The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for appellant. Rivkin Radler, LLP (Stuart M. Bodoff and Cheryl Korman of counsel), for respondent.
Unpublished Opinion
The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for appellant.
Rivkin Radler, LLP (Stuart M. Bodoff and Cheryl Korman 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 29, 2019. The order granted defendant's motion for summary judgment dismissing the complaint and denied plaintiff's cross motion for summary judgment.
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 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), and denied plaintiff's cross motion for summary judgment.
Plaintiff's only contention with respect to defendant's motion for summary judgment is that the affirmation submitted by defendant's attorney, who was present in his office to conduct plaintiff's EUOs on the scheduled dates, was insufficient to establish that plaintiff had failed to appear for the EUOs because it does not "conclusively prove that [counsel] was present at the scheduled start times of the EUOs." We reject that argument. Counsel, a partner in the law firm representing defendant in this action, stated in his affirmation that the EUOs were scheduled to take place at 10:00 a.m. in his firm's offices on December 14, 2017 and January 3, 2018; that he was "present in the office" on those days; that no one affiliated with plaintiff appeared for either scheduled EUO; and that if someone had appeared, he "would have conducted the EUO of the Plaintiff or assigned one of the other attorneys authorized to conduct EUOs to conduct the EUO of the Plaintiff." Contrary to plaintiff's argument, this affirmation was 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.