Hand By Hand PT, P.C. v Titan Indem. Co.

[*1] Hand By Hand PT, P.C. v Titan Indem. Co. 2021 NY Slip Op 50644(U) Decided on July 2, 2021 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 2, 2021
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHELLE WESTON, J.P., DAVID ELLIOT, WAVNY TOUSSAINT, JJ
2019-1383 K C

Hand By Hand PT, P.C., as Assignee of Wanda Mocie, Appellant,

against

Titan Indemnity Company, Respondent.

Kopelevich & Feldsherova, P.C. (David Landfair of counsel), for appellant. Hollander Legal Group, P.C. (Allan S. Hollander of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered August 9, 2019. The order granted defendant's motion for summary judgment dismissing the complaint.

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

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant's motion for summary judgment dismissing the complaint on the ground that plaintiff failed to appear for duly scheduled examinations under oath (EUOs).

In its motion, defendant established that initial and follow-up letters scheduling an EUO were timely mailed (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]); that plaintiff failed to appear on either date (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]); and that the claims were timely denied on that ground (see St. Vincent's Hosp. of Richmond, 50 AD3d 1123). As defendant established its prima facie entitlement to summary judgment (see Nationwide Affinity Ins. Co. of Am. v George, 183 AD3d 755 [2020]), and plaintiff failed to raise a triable issue of fact in opposition to defendant's motion, the Civil Court properly granted defendant's motion for summary judgment dismissing the complaint.

Accordingly, the order is affirmed.

WESTON, J.P., ELLIOT and TOUSSAINT, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: July 2, 2021