Renelique Med. Servs., P.C. v. State Farm Fire & Cas. Co.

Appeal from an order of the Civil Court of the City of New York, Kings County (Ingrid Joseph, J.), entered December 1, 2014. The order granted defendant's motion for summary judgment dismissing the complaint and denied plaintiff's cross motion to disqualify defendant's law firm.

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

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). The motion was supported by, among other things, an affirmation from a partner in the law firm representing defendant, attesting, based on her personal knowledge, to plaintiff's failure to appear. Plaintiff cross-moved to 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 granting defendant's motion and denying plaintiff's cross motion.

Contrary to plaintiff's sole contention on appeal with respect to defendant's motion, the affirmation submitted by defendant was sufficient to establish plaintiff's failure to appear for EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).

For the reasons stated in Lotus Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 44 Misc 3d 142[A], 2014 NY Slip Op 51315[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]), plaintiff's cross motion was properly denied.

Accordingly, the order is affirmed.

Weston, J.P., Aliotta and Elliot, JJ., concur.