All Boro Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co.

[*1] All Boro Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co. 2014 NY Slip Op 51787(U) Decided on December 11, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 11, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2012-2042 K C

All Boro Psychological Services, P.C. as Assignee of DAVID ALVAREZ, JOEL CLERVIL and TRACY SMITH, Appellant,

against

State Farm Mutual Automobile Ins. Co., Respondent.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Harriet L. Thompson, J.), entered April 4, 2012. The judgment, entered pursuant to an order of the same court granting defendant's motion for summary judgment, 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, the Civil Court 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). Plaintiff appeals from a judgment which was subsequently entered dismissing the complaint.

Contrary to plaintiff's contentions on appeal, the affidavits submitted by defendant established that the EUO scheduling letters and the denial of claim forms 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]). Plaintiff does not claim to have responded in any way to the EUO requests; therefore, plaintiff's objections on appeal regarding those requests will not now be heard (see Viviane Etienne Med. Care, P.C. v State Farm Mut. Auto. Ins. Co., 35 Misc 3d 127[A], 2012 NY Slip Op 50579[U] [App Term, 2d, 11th & 13th Jud Dists 2012]; Crescent Radiology, PLLC v American Tr. Ins. Co., 31 Misc 3d 134[A], 2011 NY Slip Op 50622[U] [App Term, 9th & 10th Jud Dists 2011]). Plaintiff's remaining contentions lack merit.

Accordingly, the judgment is affirmed.

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

Decision Date: December 11, 2014