June 3, 2022

Warton Supplies, Inc. v GEICO Gen. Ins. Co. (2022 NY Slip Op 50554(U))

Headnote

The court considered the issue of whether the plaintiff, Warton Supplies, Inc. as Assignee of Judith Darius, failed to appear for scheduled examinations under oath (EUOs), which was the basis for the defendant, GEICO General Ins. Co.'s, motion for summary judgment dismissing the complaint. The defendant established that the EUO scheduling letters and denial of claim forms had been timely mailed and that plaintiff had failed to appear for the scheduled EUOs. As a result, the defendant demonstrated its entitlement to summary judgment. The plaintiff failed to raise a triable issue of fact in opposition to the defendant's motion, and therefore the court reversed the order of the Civil Court and granted the defendant's motion for summary judgment dismissing the complaint.

Reported in New York Official Reports at Warton Supplies, Inc. v GEICO Gen. Ins. Co. (2022 NY Slip Op 50554(U))

Warton Supplies, Inc. v GEICO Gen. Ins. Co. (2022 NY Slip Op 50554(U)) [*1]

Warton Supplies, Inc. v GEICO Gen. Ins. Co.

2022 NY Slip Op 50554(U) [75 Misc 3d 135(A)]

Decided on June 3, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 3, 2022

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

PRESENT: : THOMAS P. ALIOTTA, P.J., WAVNY TOUSSAINT, DONNA-MARIE E. GOLIA, JJ
2019-1033 K C

Warton Supplies, Inc., as Assignee of Judith Darius, Respondent,
against
GEICO General Ins. Co., Appellant.

Rivkin Radler, LLP (Stuart M. Bodoff of counsel), for appellant. Kopelevich & Feldsherova, P.C. (David Landfair 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 May 6, 2019. The order denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order 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 appeals from an order of the Civil Court denying defendant’s motion which had sought summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs).

The affidavit submitted by defendant established that the EUO scheduling letters and denial of claim forms had been timely 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]). In addition, the affirmation submitted by defendant’s attorney was sufficient to establish that she was present in her office to conduct the EUO of plaintiff on the scheduled dates and that plaintiff had failed to appear on those dates (see Warton Supplies, Inc. v GEICO (Gov Empls.), 73 Misc 3d 146[A], 2021 NY Slip Op 51253[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]). As a result, defendant demonstrated its prima facie entitlement to summary judgment dismissing the complaint (see Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2014]; NL Quality Med., P.C. v GEICO Ins. Co., 68 Misc 3d 131[A], 2020 NY Slip Op 50997[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]). Plaintiff failed to raise a triable issue of fact in opposition to defendant’s motion.

Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: June 3, 2022