|Gentlecare Ambulatory Anesthesia Servs. v GEICO Ins. Co.|
|2018 NY Slip Op 50864(U) [59 Misc 3d 152(A)]|
|Decided on June 8, 2018|
|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|This opinion is uncorrected and will not be published in the printed Official Reports.|
The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Rivkin Radler, LLP (Cheryl F. Korman and Stuart M. Bodoff of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Pamela L. Fisher, J.), entered June 18, 2015. The order denied plaintiff's motion for summary judgment and granted defendant's cross 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 moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs). Plaintiff appeals from an order of the Civil Court which denied plaintiff's motion and granted defendant's cross motion.
Contrary to plaintiff's contentions, the proof submitted by defendant in support of its cross motion was sufficient to give rise to a presumption that the EUO scheduling letters and denial of claim form had been timely mailed (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 ) and to demonstrate that plaintiff had failed to appear for the EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [*2]). Furthermore, defendant was not required to set forth objective reasons for requesting EUOs in order to establish its prima facie entitlement to summary judgment, as an insurer need only demonstrate "as a matter of law that it twice duly demanded an [EUO] from the [provider] . . . that the provider failed to appear and that the [insurer] issued a timely denial of the claim" (Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 ; see Parisien v Metlife Auto & Home, 54 Misc 3d 143[A], 2017 NY Slip Op 50208[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; Palafox PT, P.C. v State Farm Mut. Auto. Ins. Co., 49 Misc 3d 144[A], 2015 NY Slip Op 51653[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Consequently, plaintiff has not provided any basis to disturb the Civil Court's order.
Accordingly, the order is affirmed.
PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.