|Island Life Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co.|
|2019 NY Slip Op 51038(U) [64 Misc 3d 130(A)]|
|Decided on March 1, 2019|
|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|This opinion is uncorrected and will not be published in the printed Official Reports.|
Rivkin Radler, LLP (Stuart M. Bodoff and Cheryl F. Korman 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 (Katherine A. Levine, J.), entered July 15, 2015. The order denied 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, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs). The Civil Court denied defendant's motion finding, among other things, the existence of an issue of fact as to whether plaintiff had contacted defendant to reschedule the EUOs and, if so, whether defendant had responded to plaintiff.
The affidavits submitted by defendant established that the EUO scheduling letters and the denial of claim form 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 ). In addition, the affirmations submitted by defendant's attorneys, who were present in their offices to conduct the EUO of plaintiff on the scheduled dates, were sufficient to establish that plaintiff had failed to appear on those dates. As a result, defendant demonstrated its prima facie entitlement to summary judgment (see Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 ; 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]).
In opposition to defendant's motion for summary judgment, plaintiff's owner submitted an affidavit in which he stated that he had called defendant to reschedule each EUO and that he left messages for defendant's investigator, but that plaintiff was not contacted by defendant in response to the messages. In response, defendant did not provide an affidavit from anyone with personal knowledge, but rather relied upon an affirmation from its counsel, asserting that [*2]plaintiff's owner's affidavit was too vague and that plaintiff was attempting to raise a feigned issue of fact. On this record, we find that defendant failed to demonstrate, as a matter of law, its entitlement to summary judgment dismissing the complaint (see Zuckerman v City of New York, 49 NY2d 557 ).
Accordingly, the order is affirmed.