SVP Med Supply, Inc. (B) v. GEICO

75 Misc. 3d 139(A), 2022 NY Slip Op 50585(U)

• Court: Appellate Terms of the Supreme Court of New York
• Decided: June 10, 2022
• Docket: 2020-641 K C
• Status: Unpublished

Opinion

SVP Med Supply, Inc. (B) v GEICO (2022 NY Slip Op 50585(U)) [*1]

SVP Med Supply, Inc. (B) v GEICO

2022 NY Slip Op 50585(U) [75 Misc 3d 139(A)]

Decided on June 10, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 June 10, 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
2020-641 K C

SVP Med Supply, Inc. (B), as Assignee of Natasha Pacheco, Respondent,

against

GEICO, Appellant.

Rivkin Radler, LLP (Stuart M. Bodoff of counsel) for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Consuelo Mallafre Melendez, J.), entered October 25, 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 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 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]). In addition, the affirmation submitted by defendant's attorney, who was present in her office to conduct the EUO of plaintiff on the scheduled dates, was sufficient to establish that plaintiff had failed to appear on those dates (see Hertz Corp. v Active Care Med. Supply Corp., 124 AD3d 411 [2015]; 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]; cf. Satya Drug Corp. v Global Liberty Ins. Co. of NY, 65 Misc 3d 127[A], 2019 NY Slip Op 51505[U] [App Term, 1st Dept 2019]). As a result, defendant demonstrated its prima facie entitlement to summary judgment (see Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2014]). 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 [*2]dismissing the complaint is granted.

ALIOTTA, P.J., TOUSSAINT and GOLIA, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: June 10, 2022