DITMAS PRIMARY MEDICAL CARE v. REPUBLIC WESTERN INS CO (2021)

ORDERED that the order 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 an order of the Civil Court denying defendant's motion which had sought summary judgment dismissing the complaint on the ground that plaintiff's assignor had failed to appear for duly scheduled examinations under oath (EUOs).

The affidavit submitted by defendant established that the denial of claim forms 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 [2008]). In addition, the affirmation submitted by defendant's attorney was sufficient to establish that the EUO scheduling letters had been timely mailed (id.) and, since he was present in his office to conduct the EUO of plaintiff's assignor on the scheduled dates, that plaintiff's assignor had failed to appear on those dates. As a result, defendant demonstrated its prima facie entitlement upon defendant's motion seeking summary judgment dismissing the complaint (see Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2014]; NL Quality Med., P.C. v GEICO Ins. Co., 68 Misc 3d 131[A], 2020 NY Slip Op 50997[A] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]). Plaintiff failed to raise a triable issue of fact in opposition to defendant's motion.

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

ALIOTTA, P.J., TOUSSAINT and GOLIA, JJ., concur.