CHARLES DENG ACUPUNCTURE v. STATE FARM MUTUAL AUTOMOBILE INS CO (2018)

Supreme Court, Appellate Term, New York.

CHARLES DENG ACUPUNCTURE, P.C., as Assignee of Denard, Jean, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INS. CO., Respondent.

2016–75 K C

Decided: May 18, 2018

PRESENT: MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Rivkin Radler, LLP (Cheryl F. Korman and Stuart M. Bodoff of counsel), Uniondale, for respondent.

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 had failed to appear for duly scheduled examinations under oath (EUOs).

Contrary to plaintiff's arguments, defendant's proof was sufficient to establish, prima facie, that plaintiff had failed to appear for the scheduled EUOs (see Stephen Fogel Psychological, P.C. v. Progressive Cas. Ins. Co., 35 AD3d 720 [2006] ), and plaintiff failed to raise a triable issue of fact in response. Plaintiff's remaining contention lacks merit (see Interboro Ins. Co. v. Clennon, 113 AD3d 596, 597 [2014]; Parisien v. Metlife Auto & Home, 54 Misc 3d 143[A], 2017 NY Slip Op 50208[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017] ).

Accordingly, the order is affirmed.

PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.

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