May 3, 2019

Pavlova v Hartford Ins. Co. (2019 NY Slip Op 50693(U))

Headnote

The court considered the fact that the plaintiff, a provider seeking to recover assigned first-party no-fault benefits, failed to appear for duly scheduled examinations under oath (EUOs) and that the denial of claim form at issue had been properly mailed. The main issue decided was whether the affirmation submitted by the defendant's attorney was sufficient to establish that the plaintiff had failed to appear for the EUOs, and whether the proof submitted by the defendant in support of its motion was sufficient to give rise to a presumption that the denial of claim form had been properly mailed. The court held that the defendant's attorney's affirmation was sufficient to establish the plaintiff's failure to appear for the EUOs, and that the proof submitted by the defendant gave rise to a presumption that the denial of claim form had been properly mailed, thus affirming the lower court's decision to grant the defendant's motion for summary judgment dismissing the complaint and denying the plaintiff's cross motion for summary judgment.

Reported in New York Official Reports at Pavlova v Hartford Ins. Co. (2019 NY Slip Op 50693(U))

Pavlova v Hartford Ins. Co. (2019 NY Slip Op 50693(U)) [*1]

Pavlova v Hartford Ins. Co.

2019 NY Slip Op 50693(U) [63 Misc 3d 147(A)]

Decided on May 3, 2019

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 3, 2019

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2017-600 K C

Ksenia Pavlova, D.O., as Assignee of George Brathwaite, Appellant,
against
Hartford Insurance Company, Respondent.

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Mackey Butts & Wise, LLP (Joshua E. Mackey of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Harriet L. Thompson, J.), entered November 1, 2016. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

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) and denied plaintiff’s cross motion for summary judgment.

Contrary to plaintiff’s contention, the affirmation submitted by defendant’s attorney, who was present in his office to conduct plaintiff’s EUOs on the scheduled dates, was sufficient to establish that plaintiff had failed to appear for the EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). In addition, the proof submitted by defendant in support of its motion was sufficient to give rise to a presumption that the denial of claim form [*2]at issue had been properly mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]).

Accordingly, the order is affirmed.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: May 03, 2019