Oleg’s Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2019 NY Slip Op 50761(U))

Rivkin Radler, LLP (Stuart M. Bodoff of counsel), for appellant. Gary Tsirelman, P.C. (Stefan Belinfanti of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Devin P. Cohen, J.), entered May 31, 2016. The order, insofar as appealed from, denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, 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 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 May 31, 2016, the Civil Court denied the motion, but found, in effect pursuant to CPLR 3212 (g), that defendant had established the timely and proper mailing of the EUO scheduling letters and denial of claim forms, as well as plaintiff’s failure to appear for the EUOs. The Civil Court further found that the only remaining issues for trial were plaintiff’s prima facie case and whether plaintiff failed to appear for the EUOs “due to a discrepancy as to the person stated in the EUO request letters to report to at the EUO, and the person signing the affirmation alleging he was assigned and stating that plaintiff failed to appear.” Defendant appeals, contending that it was entitled to summary judgment dismissing the complaint.

For the reasons stated in Oleg’s Acupuncture, P.C., as Assignee of Malaysia Mullervy v State Farm Mut. Auto. Ins. Co. (___ Misc 3d ___, 2019 NY Slip Op _____ [appeal No. 2017-575 K C], decided herewith), the order, insofar as appealed from, is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.