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ULTRA ORTHO PRODUCTS, INC., as Assignee of Zacharie Elaine, Respondent, v. GEICO INS. CO., Appellant.
ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant's cross motion for summary judgment dismissing the complaint is granted.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs). By order entered June 18, 2018, the Civil Court denied the motion and cross motion, but found, in effect pursuant to CPLR 3212 (g), that the only issue remaining for trial was whether plaintiff had failed to appear for the scheduled EUOs. Defendant appeals, as limited by its brief, from so much of the order as denied its cross motion.
The proof submitted by defendant was sufficient to demonstrate that plaintiff had failed to appear for the EUOs (see Stephen Fogel Psychological, P.C. v. Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; Gentlecare Ambulatory Anesthesia Servs. v. GEICO Ins. Co., 59 Misc 3d 152[A], 2018 NY Slip Op 50864[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018] ), which showing plaintiff failed to rebut. To the extent plaintiff challenges the Civil Court's implicit CPLR 3212 (g) findings in favor of defendant with respect to the mailing of the EUO scheduling letters and denial of claims forms, the proof submitted by defendant was sufficient to demonstrate that the EUO scheduling letters and denial of claim forms had been timely mailed (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]).
Accordingly, the order, insofar as appealed from, is reversed and defendant's cross motion for summary judgment dismissing the complaint is granted.
PESCE, P.J., ALIOTTA and SIEGAL, JJ., concur.
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Docket No: 2018-1501 K C
Decided: November 15, 2019
Court: Supreme Court, Appellate Term, New York.
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