Opinion
2019-859 K C
12-22-2021
Warton Supplies, Inc., as Assignee of Jean Louis, Appellant, v. GEICO (Gov Employees), Respondent.
Kopelevich & Feldsherova, P.C. (David Landfair of counsel), for appellant. Rivkin Radler, LLP (Stuart M. Bodoff and Cheryl F. Korman of counsel), for respondent.
Unpublished Opinion
MOTION DECISION
Kopelevich & Feldsherova, P.C. (David Landfair of counsel), for appellant.
Rivkin Radler, LLP (Stuart M. Bodoff and Cheryl F. Korman 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 (Michael Gerstein, J.), entered May 13, 2019. The order granted defendant's motion for summary judgment dismissing the complaint.
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 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).
Contrary to plaintiff's contention, the proof submitted by defendant in support of its motion was sufficient to give rise to a presumption that the EUO scheduling letters and the denial of claim forms had been timely mailed (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 A.D.3d 1123 [2008]). To the extent plaintiff also asserts that, pursuant to CPLR 2106 (a), the affirmation submitted by defendant to establish that plaintiff had failed to appear for the EUOs was not admissible since the attorney was employed by a law firm as "staff counsel" to defendant, such an argument lacks merit (see Matter of Reid v Rochdale Vil., Inc., 137 A.D.3d 797 [2016]; Throgs Neck Multicare, P.C. v Mercury Cas. Co., 52 Misc.3d 138 [A], 2016 NY Slip Op 51081[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2016]).
Accordingly, the order is affirmed.
ALIOTTA, P.J., TOUSSAINT and GOLIA, JJ., concur.