Heal-Rite, P.T., P.C. v. State Farm Mut. Auto. Ins. Co.

Heal-Rite, P.T., P.C. v State Farm Mut. Auto. Ins. Co. (2022 NY Slip Op 51246(U)) [*1] Heal-Rite, P.T., P.C. v State Farm Mut. Auto. Ins. Co. 2022 NY Slip Op 51246(U) [77 Misc 3d 133(A)] Decided on December 2, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 2, 2022 SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS PRESENT: : THOMAS P. ALIOTTA, P.J., WAVNY TOUSSAINT, CHEREÉ A. BUGGS, JJ 2021-637 K C Heal-Rite, P.T., P.C., as Assignee of Mark Lee, Appellant, against State Farm Mutual Auto. Ins. Co., 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 (Nicholas W. Moyne, J.), entered October 27, 2021. 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 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). The affidavit submitted by defendant established that the EUO scheduling letters and the denial of claim forms, which denied the claims on the ground that plaintiff had failed to appear for the EUOs, 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 AD3d 1123 [2008]) and defendant's mailing logs, submitted in conjunction with the affidavit, provided additional proof that they were delivered to the post office on the dates set forth in the affidavit. In addition, defendant submitted an affirmation by its attorney who was scheduled to conduct the [*2]EUOs, which was sufficient to establish the assignor's failure to appear (see Pavlova v Nationwide Ins., 70 Misc 3d 144[A], 2021 NY Slip Op 50213[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]; TAM Med. Supply Corp. v 21st Century Ins. Co., 57 Misc 3d 149[A], 2017 NY Slip Op 51510[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]). As defendant established its prima facie entitlement to summary judgment (see Interboro Ins. Co. v Clennon, 113 AD3d 596 [2014]), and plaintiff failed to raise a triable issue of fact in opposition to defendant's motion, the Civil Court properly granted defendant's motion for summary judgment dismissing the complaint. Accordingly, the order is affirmed. ALIOTTA, P.J., TOUSSAINT and BUGGS, JJ., concur. ENTER: Paul Kenny Chief Clerk Decision Date: December 2, 2022