Parisien v Ameriprise Ins. (2020 NY Slip Op 50990(U))

Bruno, Gerbino. Soriano & Aitken, LLP (Nathan M. Shapiro of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Cenceria P. Edwards, J.), entered April 20, 2018, deemed from a judgment of that court entered May 24, 2018 (see CPLR 5512 [a]). The judgment, entered pursuant to the April 20, 2018 order denying defendant’s motion for summary judgment dismissing the complaint and granting plaintiff’s cross motion for summary judgment, awarded plaintiff the principal sum of $248.69.

ORDERED that the judgment is reversed, with $30 costs, the order entered April 20, 2018 is vacated, defendant’s motion for summary judgment dismissing the complaint is granted, and plaintiff’s cross motion for summary judgment is denied.

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). Plaintiff cross-moved for summary judgment. Defendant appeals from an order entered April 20, 2018 which denied defendant’s motion and granted plaintiff’s cross motion. We deem the notice of appeal from the order entered April 20, 2018 to be from a judgment which was subsequently entered on May 24, 2018 in favor of plaintiff in the principal sum of $248.69 (see CPLR 5512 [a]).

In its motion, defendant established that the EUO scheduling letters had been mailed in accordance with defendant’s standard office practices and procedures (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]); that plaintiff had failed to appear for the EUO scheduled for June 8, 2016 and the EUO scheduled for July 29, 2016 which had been moved to Brooklyn at plaintiff’s request (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]); and that plaintiff’s claim for services rendered on October 6, 2016 had been timely denied on that ground (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Arco Med. NY, P.C. v Metropolitan Cas. Ins. Co., 41 Misc 3d 140[A], 2013 NY Slip Op 52001[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; ARCO Med. NY, P.C. v Lancer Ins. Co., 34 Misc 3d 134[A], 2011 NY Slip Op 52382[U] [App Term, 2d Dept, 2d, 11th [*2]& 13th Jud Dists 2011]). As a result, defendant established its prima facie entitlement to summary judgment dismissing the complaint (see Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2014]). Plaintiff failed to raise a triable issue of fact in opposition to defendant’s prima facie showing.

Accordingly, the judgment is reversed, the order entered April 20, 2018 is vacated, defendant’s motion for summary judgment dismissing the complaint is granted, and plaintiff’s cross motion for summary judgment is denied.

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