Pavlova v. Hartford Ins. Co.

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Mackey Butts & Wise, LLP (Joshua E. Mackey of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Harriet L. Thompson, J.), entered November 1, 2016. The order granted defendant's motion for summary judgment dismissing the complaint and denied plaintiff's cross motion for summary judgment.

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 had failed to appear for duly scheduled examinations under oath (EUOs) and denied plaintiff's cross motion for summary judgment.

Contrary to plaintiff's contention, the affirmation submitted by defendant's attorney, who was present in his office to conduct plaintiff's EUOs on the scheduled dates, was 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 motion was sufficient to give rise to a presumption that the denial of claim form [*2]at issue had been properly mailed (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]).

Accordingly, the order is affirmed.

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