WARTON SUPPLIES INC v. GEICO (2021)

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant's motion for summary judgment dismissing the complaint on the ground that plaintiff failed to appear for duly scheduled examinations under oath (EUOs).

Contrary to plaintiff's contention, the proof submitted by defendant in support of its motion was sufficient to give rise to a presumption that the EUO scheduling letters and the denial of claim forms had been timely mailed (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). To the extent plaintiff also asserts that, pursuant to CPLR 2106 (a), the affirmation submitted by defendant to establish that plaintiff had failed to appear for the EUOs was not admissible since the attorney was employed by a law firm as “staff counsel” to defendant, such an argument lacks merit (see Matter of Reid v Rochdale Vil., Inc., 137 AD3d 797 [2016]; Throgs Neck Multicare, P.C. v Mercury Cas. Co., 52 Misc 3d 138[A], 2016 NY Slip Op 51081[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2016]).

Accordingly, the order is affirmed.

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