SVP MED SUPPLY INC v. GEICO (2022)

ORDERED that the order, insofar as appealed from, 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 so much of an order of the Civil Court as denied 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 Civil Court limited the issues for trial, in effect pursuant to CPLR 3212 (g), to whether plaintiff had failed to appear for the EUOs. The court, citing Metro 8 Med. Equip., Inc. v ELRAC, Inc. (50 Misc 3d 140[A], 2016 NY Slip Op 50174[U] [App Term, 1st Dept 2016]), found that defendant had not made a prima facie showing of plaintiff's failure to appear for scheduled EUOs due to the amount of time between the scheduled EUOs and the date on which the affirmation was executed by the attorney who was present to conduct such EUOs, and the affiant's failure to establish the basis for her recollection of plaintiff's failure to appear.

Contrary to the determination of the Civil Court, the affirmation submitted by the attorney who was to conduct the scheduled EUOs was sufficient to establish that plaintiff had failed to appear. As the attorney who was to conduct such EUOs, Megan Dimicelli, Esq., stated that she was present at the location of the scheduled EUOs and that she would have conducted the EUOs if plaintiff had appeared, she possessed personal knowledge that plaintiff had failed to appear (see Hertz Corp. v Active Care Med. Supply Corp., 124 AD3d 411 [2015]; 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]; Natural Therapy Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 44 Misc 3d 141[A], 2014 NY Slip Op 51310[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]). To the extent the Civil Court stated that an issue existed with respect to DiMicelli's recollection of plaintiff's failure to appear, such a determination was not warranted, as, on its face, DiMicelli's affirmation was not unworthy of belief (see e.g. Joseph-Felix v Hersh, ––– AD3d ––––, 2022 NY Slip Op 04905 [2d Dept 2022]; cf. Metro 8 Med. Equip., Inc. v ELRAC, Inc., 2016 NY Slip Op 50174[U]). In opposition to defendant's motion, plaintiff could have demonstrated the existence of a material issue of fact by submitting an affidavit stating that plaintiff had appeared for an EUO, but plaintiff failed to do so. As plaintiff did not otherwise challenge the implicit CPLR 3212 (g) findings in defendant's favor, defendant is entitled to summary judgment dismissing the complaint.

Accordingly, the order, insofar as appealed from, is reversed, and defendant's motion for summary judgment dismissing the complaint is granted.

ALIOTTA, P.J., WESTON and BUGGS, JJ., concur.