Opinion
No. 2020-400 K C
07-22-2022
SVP Med Supply, Inc., as Assignee of Ludmila Levin, Appellant, v. GEICO, Respondent.
The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for appellant. Rivkin Radler, LLP (Stuart M. Bodoff and Cheryl F. Korman of counsel), for respondent.
Unpublished Opinion
MOTION DECISION
The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for appellant.
Rivkin Radler, LLP (Stuart M. Bodoff and Cheryl F. Korman of counsel), for respondent.
PRESENT:: DONNA-MARIE E. GOLIA, J.P., WAVNY TOUSSAINT, CHEREÉ A. BUGGS, JJ
Appeal from an order of the Civil Court of the City of New York, Kings County (Jill R. Epstein, J.), entered December 18, 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 of the Civil Court granting defendant's motion for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs), and denying plaintiff's cross motion for summary judgment.
Contrary to plaintiff's argument on appeal, defendant demonstrated, prima facie, that plaintiff failed to appear for scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 A.D.3d 720 [2006]). Defendant submitted the affirmation of an attorney who stated that she was in her firm's office on the dates on which the EUOs were scheduled, that she would have either conducted the EUO herself or assigned another attorney to do so, and that plaintiff did not appear. She was not required to state that she was present in the office at any specific time on the scheduled dates (see Parisien v Ameriprise Auto & Home, ___ Misc.3d ___, 2022 NY Slip Op 50581[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]; Sanford Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co., ___ Misc.3d ___, 2022 NY Slip Op 50576[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]). In opposition to the motion, plaintiff failed to raise a triable issue of fact.
Plaintiff's remaining contention with respect to defendant's motion for summary judgment was improperly raised for the first time on appeal, and we decline to consider it. Accordingly, the order is affirmed.
GOLIA, J.P., TOUSSAINT and BUGGS, JJ., concur.