Masigla v Travelers Ins. Co.

[*1] Masigla v Travelers Ins. Co. 2017 NY Slip Op 51794(U) Decided on December 19, 2017 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 19, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2015-289 Q C

Maria S. Masigla, P.T., as Assignee of Brumaire, Shimaine, Appellant,

against

Travelers Insurance Company, Respondent.

The Rybak Firm, PLLC (Joseph D. DePalma, Esq.), for appellant. Law Offices of Aloy O. Ibuzor (William Angstreich, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Ulysses Bernard Leverett, J.), entered January 5, 2015. The order, insofar as appealed from as limited by the brief, granted the branches of defendant's cross motion seeking summary judgment dismissing the first through sixth, eighth, and tenth causes of action.

ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. Plaintiff appeals, as limited by its brief, from so much of a January 5, 2015 order of the Civil Court as granted the branches of defendant's cross motion seeking summary judgment dismissing the first through sixth, eighth, and tenth causes of action on the ground that plaintiff had failed to appear for examinations under oath (EUOs).

Contrary to plaintiff's contention, the affirmations submitted by defendant's attorneys, who were present in their offices to conduct plaintiff's EUOs on the scheduled dates, were sufficient to establish that plaintiff had failed to appear for the EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). In addition, the proof submitted by defendant in support of its cross motion was sufficient to give rise to a presumption that the denial of claim forms at issue had been properly mailed (see St. Vincent's Hosp. of [*2]Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]).

Accordingly, the order, insofar as appealed from, is affirmed.

PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 19, 2017