Opinion
No. 2023-50796 No. 2023-62 K C
07-21-2023
Shafai Acupuncture, P.C., as Assignee of Ali, Sean, 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 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Unpublished Opinion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 of counsel), for respondent.
PRESENT:: MARINA CORA MUNDY, J.P., LISA S. OTTLEY, LOURDES M. VENTURA, JJ.
Appeal from an order of the Civil Court of the City of New York, Kings County (D. Bernadette Neckles, J.), entered July 29, 2022. The order, insofar as appealed from as limited by the brief, granted the branches of defendant's motion seeking summary judgment dismissing the first and second causes of action of the complaint and denied the branches of plaintiff's cross-motion seeking summary judgment upon those causes of action.
ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals, as limited by its brief, from so much of an order of the Civil Court as granted the branches of defendant's motion seeking summary judgment dismissing the first and second causes of action and denied the branches of plaintiff's cross-motion seeking summary judgment upon those causes of action.
Contrary to plaintiff's sole contention with respect to the branches of defendant's motion seeking summary judgment upon the first and second causes of action, the affidavit of defendant's employee was sufficient to give rise to a presumption that the examination under oath scheduling letters and denial of claim forms as to the claims underlying those causes of action had been timely mailed (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 A.D.3d 1123 [2008]; Horizon P.T. Care, P.C. v State Farm Mut. Auto. Ins. Co., 78 Misc.3d 133 [A], 2023 NY Slip Op 50442[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2023]). Thus, plaintiff has not demonstrated any basis to disturb so much of the order as granted the branches of defendant's motion seeking summary judgment dismissing the first and second causes of action, and denied the branches of plaintiff's cross-motion seeking summary judgment upon those causes of action.
Accordingly, the order, insofar as appealed from, is affirmed.
MUNDY, J.P., OTTLEY and VENTURA, JJ., concur.