MAZ CHIROPRACTIC v. STATE FARM INSURANCE COMPANY (2025)

ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from so much of an order of the Civil Court (Edward H. King, J.) entered September 28, 2023 as granted 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).

Contrary to plaintiff's sole contention on appeal, the affirmation submitted by the attorney who was to conduct the scheduled EUOs was sufficient to establish that plaintiff had failed to appear. The attorney stated that he was present at the location of the scheduled EUOs, that he would have conducted the EUOs if plaintiff had appeared, and that he possessed personal knowledge that plaintiff had failed to appear (see Hertz Corp. v Active Care Med. Supply Corp., 124 AD3d 411 [2015]; SVP Med Supply, Inc. v GEICO, 76 Misc 3d 134[A], 2022 NY Slip Op 50931[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]; T & J Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co., 47 Misc 3d 130[A], 2015 NY Slip Op 50406[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). To the extent plaintiff contends that an issue existed with respect to counsel's recollection of plaintiff's failure to appear, such a contention is without merit, as, on its face, counsel's affirmation was not unworthy of belief (see e.g. Joseph-Felix v Hersh, 208 AD3d 571 [2022]; SVP Med Supply, Inc., 2022 NY Slip Op 50931[U]).

Accordingly, the order, insofar as appealed from, is affirmed.

TOUSSAINT, P.J. and MUNDY, J., concur. OTTLEY, J., taking no part.