Warton Supplies, Inc. v. GEICO Indem. Co.

Warton Supplies, Inc. v GEICO Indem. Co. (2022 NY Slip Op 50770(U)) [*1] Warton Supplies, Inc. v GEICO Indem. Co. 2022 NY Slip Op 50770(U) [76 Misc 3d 126(A)] Decided on July 15, 2022 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports. Decided on July 15, 2022 SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS PRESENT: : THOMAS P. ALIOTTA, P.J., WAVNY TOUSSAINT, DONNA-MARIE E. GOLIA, JJ 2020-574 K C Warton Supplies, Inc., as Assignee of Mervette Millien, Appellant, against GEICO Indemnity Company, Respondent. Kopelevich & Feldsherova, P.C. (David Landfair of counsel), for appellant. Rivkin Radler, LLP (Stuart M. Bodoff of counsel), for respondent. Appeal from an order of the Civil Court of the City of New York, Kings County (Ira R. Greenberg, J.), entered December 6, 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 denial of claim forms had been timely mailed (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Flushing Traditional Acupuncture, P.C. v GEICO Ins. Co., 69 Misc 3d 140[A], 2020 NY Slip Op 51337[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]). In addition, to the extent plaintiff also asserts that, pursuant to CPLR 2106 (a), the affirmation that defendant [*2]submitted 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 AD3d 797 [2016]; Warton Supplies, Inc. v GEICO (Gov Empls.), 76 Misc 3d 146[A], 2021 NY Slip Op 51253[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]). Accordingly, the order is affirmed. ALIOTTA, P.J., TOUSSAINT and GOLIA, JJ., concur. ENTER: Paul Kenny Chief Clerk Decision Date: July 15, 2022