Maiga Prods. Corp. v State Farm Mut. Auto. Ins. Co.

[*1] Maiga Prods. Corp. v State Farm Mut. Auto. Ins. Co. 2018 NY Slip Op 51682(U) Decided on November 23, 2018 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 23, 2018
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2016-589 K C

Maiga Products Corp., as Assignee of Dorsinvil, Mireille, Respondent,

against

State Farm Mutual Automobile Ins. Co., Appellant.

Rivkin Radler, LLP (Stuart M. Bodoff and Cheryl F. Korman 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 (Katherine A. Levine, J.), entered January 21, 2016. The order, insofar as appealed from and as limited by the brief, denied defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, 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 moved for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs), and plaintiff cross-moved for summary judgment. By order entered January 21, 2016, the Civil Court denied the motion and cross motion, but, insofar as is relevant here, found, in effect pursuant to CPLR 3212 (g), that defendant had established the timely and proper mailing of the EUO scheduling letters and the denial of claim forms, as well as plaintiff's failure to appear for the EUOs. The Civil Court further found that the only remaining issue for trial was "the nexus between where the bill is received and where the verification and denial is processed and mailed from Ballston Spa, when bill was received in Atlanta, Ga [sic]." As limited by its brief, defendant appeals from so much of the order as denied its motion for summary judgment dismissing the complaint.

For the reasons stated in Maiga Prods. Corp., as Assignee of Jean-Francois, Michael v State Farm Mut. Auto. Ins. Co. (__ Misc 3d ___, 2018 NY Slip Op _____ [appeal No. 2016-426 [*2]K C], decided herewith), the order, insofar as appealed from, is reversed and defendant's motion for summary judgment dismissing the complaint is granted.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 23, 2018