Lotus Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co.

[*1] Lotus Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. 2014 NY Slip Op 51315(U) Decided on August 20, 2014 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 20, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., SOLOMON and ELLIOT, JJ.
2012-2423 Q C

Lotus Acupuncture, P.C. as Assignee of LIGIA DISLA, Appellant, -

against

State Farm Mutual Automobile Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Joseph E. Capella, J.), entered August 3, 2012, deemed from a judgment of the same court entered September 28, 2012 (see CPLR 5501 [c]). The judgment, entered pursuant to the August 3, 2012 order granting defendant's motion for summary judgment dismissing the complaint and denying plaintiff's cross motion to, among other things, disqualify defendant's law firm from representing defendant in this action, dismissed the complaint.

ORDERED that the judgment is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, insofar as is relevant to this appeal, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs). The motion was supported by, among other things, an affirmation from a partner in the law firm representing defendant, attesting to plaintiff's failure to appear. Plaintiff cross-moved to, among other things, disqualify the law firm representing defendant, pursuant to rule 3.7 of the Rules of Professional Conduct (22 NYCRR 1200.0), on the ground that a member of the firm was a necessary witness in this case. Plaintiff appeals from an order of the Civil Court entered August 3, 2012 granting defendant's motion and denying plaintiff's cross motion. A judgment was subsequently entered dismissing the complaint, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

As to defendant's motion for summary judgment, we find that, contrary to plaintiff's arguments on appeal, defendant submitted sufficient proof to show that the EUO scheduling letters and the denial of claim form had been timely mailed (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]), and that plaintiff had failed to appear at either of the duly scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). An appearance at an EUO is a condition precedent to an insurer's liability on a policy (see Insurance Department Regulations [11 NYCRR] § 65-1.1; Stephen Fogel Psychological, P.C., 35 AD3d 720). Therefore, and as plaintiff's remaining contentions with respect to this motion lack merit, we find that the Civil Court properly granted defendant's motion for summary judgment dismissing the complaint.

In light of the foregoing, plaintiff's request that defendant's law firm be disqualified based [*2]on the attorney/witness rule is "moot since, summary judgment having been granted, there will be no trial of this matter" (Quiros v Mount St. Michael Academy, 303 AD2d 185, 186 [2003]; see also Lombino v Town Bd. of Town of Rye, 206 AD2d 462 [1994]). In any event, plaintiff failed to establish that disqualification of defendant's law firm was warranted (see S & S Hotel Ventures Ltd. Partnership v 777 S. H. Corp., 69 NY2d 437 [1987]; see also e.g. Magnus v Sklover, 95 AD3d 837 [2012]; Matter of Advent Assoc., LLC v Vogt Family Inv. Partners, L.P., 56 AD3d 1023 [2008]; Hudson Val. Mar., Inc. v Town of Cortlandt, 54 AD3d 999 [2008]; Daniel Gale Assoc., Inc. v George, 8 AD3d 608 [2004]; Broadwhite Assoc. v Truong, 237 AD2d 162 [1997]; Matter of Cowen & Co. v Tecnoconsult Holdings, 234 AD2d 86 [1996]; Talvy v American Red Cross in Greater NY, 205 AD2d 143 [1994], affd 87 NY2d 826 [1995]; Kaplan v Maytex Mills, 187 AD2d 565 [1992]).

Accordingly, the judgment is affirmed.

Pesce, P.J., Solomon and Elliot, JJ., concur.

Decision Date: August 20, 2014