Opinion
No. 2019-1033 K C
06-03-2022
Warton Supplies, Inc., as Assignee of Judith Darius, Respondent, v. GEICO General Ins. Co., Appellant.
Rivkin Radler, LLP (Stuart M. Bodoff of counsel), for appellant. Kopelevich & Feldsherova, P.C. (David Landfair of counsel), for respondent.
Unpublished Opinion
Rivkin Radler, LLP (Stuart M. Bodoff of counsel), for appellant.
Kopelevich & Feldsherova, P.C. (David Landfair of counsel), for respondent.
PRESENT: THOMAS P. ALIOTTA, P.J., WAVNY TOUSSAINT, DONNA-MARIE E. GOLIA, JJ
Appeal from an order of the Civil Court of the City of New York, Kings County (Cenceria P. Edwards, J.), entered May 6, 2019. The order denied defendant's motion for summary judgment dismissing the complaint.
ORDERED that the order 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 appeals from an order of the Civil Court denying defendant's motion which had sought summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs).
The affidavit submitted by defendant established that the EUO scheduling letters and 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 A.D.3d 1123 [2008]). In addition, the affirmation submitted by defendant's attorney was sufficient to establish that she was present in her office to conduct the EUO of plaintiff on the scheduled dates and that plaintiff had failed to appear on those dates (see Warton Supplies, Inc. v GEICO (Gov Empls.), 73 Misc.3d 146 [A], 2021 NY Slip Op 51253[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]). As a result, defendant demonstrated its prima facie entitlement to summary judgment dismissing the complaint (see Interboro Ins. Co. v Clennon, 113 A.D.3d 596, 597 [2014]; NL Quality Med., P.C. v GEICO Ins. Co., 68 Misc.3d 131 [A], 2020 NY Slip Op 50997[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]). Plaintiff failed to raise a triable issue of fact in opposition to defendant's motion.
Accordingly, the order is reversed and defendant's motion for summary judgment dismissing the complaint is granted.
ALIOTTA, P.J., TOUSSAINT and GOLIA, JJ., concur.