June 17, 2022

Ezra Supply, Inc. v State Farm Mut. Auto Ins. Co. (2022 NY Slip Op 50613(U))

Headnote

The court considered the fact that the plaintiff was seeking to recover assigned first-party no-fault benefits, but the defendant argued that the plaintiff's assignor failed to appear for scheduled examinations under oath (EUOs). The main issue decided was whether the defendant had established, prima facie, that the EUO letters were timely and properly mailed, and whether the plaintiff's assignor failed to appear for the scheduled dates. The holding of the court was that the defendant did establish, prima facie, that the EUO letters were timely and properly mailed, and that the plaintiff's assignor did fail to appear on the scheduled dates, thus affirming the order granting the defendant's motion for summary judgment dismissing the complaint.

Reported in New York Official Reports at Ezra Supply, Inc. v State Farm Mut. Auto Ins. Co. (2022 NY Slip Op 50613(U))

Ezra Supply, Inc. v State Farm Mut. Auto Ins. Co. (2022 NY Slip Op 50613(U)) [*1]

Ezra Supply, Inc. v State Farm Mut. Auto Ins. Co.

2022 NY Slip Op 50613(U) [75 Misc 3d 142(A)]

Decided on June 17, 2022

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This opinion is uncorrected and will not be published in the printed Official Reports.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 June 17, 2022

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

PRESENT: : THOMAS P. ALIOTTA, P.J., DONNA-MARIE E. GOLIA, CHEREÉ A. BUGGS, JJ
2021-285 K C

Ezra Supply, Inc., as Assignee of Villar De La Rosa Yari, Appellant,
against
State Farm Mutual Auto Ins. Co., Respondent.

Kopelevich & Feldsherova, P.C. (David Landfair of counsel), for appellant. Rivkin Radler, LLP (Stuart M. Bodoff and Cheryl F. Korman of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Jill R. Epstein, J.), entered April 1, 2021. The order granted defendant’s motion for summary judgment dismissing the complaint.

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 granting defendant’s motion for summary judgment dismissing the complaint on the ground that plaintiff’s assignor failed to appear for duly scheduled examinations under oath (EUOs).

Contrary to plaintiff’s contention, defendant established, prima facie, that initial and follow-up letters scheduling an EUO were timely and properly mailed in accordance with defendant’s standard office practices and procedures, as plaintiff’s assignor’s sworn statement confirmed that the address used by defendant was the proper address and neither plaintiff nor its assignor disputed assignor’s receipt of the letters (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). In addition, defendant established, prima facie, that plaintiff’s assignor failed to appear on either of the scheduled dates (see Celestin v 40 Empire Blvd., Inc., 168 AD3d 805 [2019]) and that the claims were timely denied on that ground (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123).

Accordingly, the order is affirmed.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: June 17, 2022