BNE CLINTON MEDICAL v. STATE FARM MUTUAL AUTO INS CO (2021)

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 motion was supported by, among other things, an affirmation from a partner in the law firm representing defendant, attesting to plaintiff's failure to appear. Plaintiff cross-moved to disqualify the law firm representing defendant, pursuant to Rules of Professional Conduct (22 NYCRR 1200.0) rule 3.7, on the ground that a member of the firm was a necessary witness in this case. Plaintiff appeals from an order of the Civil Court granting defendant's motion and denying plaintiff's cross motion.

Plaintiff's contention that defendant failed to make a prima facie showing of its entitlement to summary judgment because defendant did not show that it had timely mailed “prescribed forms” upon learning of the accident (see 11 NYCRR 65-3.4) lacks merit, as such a showing is not part of an insurer's prima facie burden when seeking summary judgment on the ground that a provider or the provider's assignor failed to appear for duly scheduled EUOs (see Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2014]).

Plaintiff's contention that defendant's law firm should be disqualified based on the attorney-witness rule lacks merit for the reasons stated in Lotus Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (44 Misc 3d 142[A], 2014 NY Slip Op 51315[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]).

Accordingly, the order is affirmed.

WESTON, J.P., ELLIOT and TOUSSAINT, JJ., concur.