By: Pesce, P.J., Aliotta, Elliot, JJ.Gary Tsirelman, P.C. (David M. Gottlieb of counsel), for appellant.Foley, Smit, O’Boyle & Weisman (Aaron Meyer of counsel), for respondent.2015-1253 Q C. SHIROM ACUPUNCTURE, P.C. v. NYCTA-MABSTOA — Appeal from a judgment of the Civil Court of the City of New York, Queens County (Larry Love, J.), entered February 11, 2015. The judgment, entered pursuant to an order of that court entered March 6, 2013 granting the branch of defendant’s motion seeking to dismiss the complaint pursuant to CPLR 3211 (a) (5), dismissed the complaint.ORDERED that the judgment is affirmed, with $25 costs.In this action by a provider to recover assigned first-party no-fault benefits, defendant moved, pursuant to CPLR 3211 (a) (5), to, among other things, dismiss the complaint on the ground that the action had been commenced after the expiration of the three-year limitation period of CPLR 214 (2), which, defendant contended, was applicable to self-insurers such as defendant. Plaintiff cross-moved for summary judgment and argued, among other things, that the action is subject to a six-year statute of limitations. By order entered March 6, 2013, the Civil Court, insofar as is relevant, granted the branch of defendant’s motion seeking to dismiss the complaint pursuant to CPLR 3211 (a) (5) and implicitly denied plaintiff’s cross motion. On February 11, 2015, a judgment of that court was entered dismissing the complaint.For the reasons stated in Contact Chiropractic, P.C. v. New York City Tr. Auth. (31 NY3d 187 [2018]), the judgment is affirmed.November 16, 2018
The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant.Rivkin Radler, LLP (Stuart M. Bodoff and Cheryl F. Korman of counsel), for respondent.2016-428 K C. PAVLOVA v. STATE FARM MUT. AUTO. INS. CO. — Appeal from an order of the Civil Court of the City of New York, Kings County (Theresa M. Ciccotto, J.), entered January 26, 2016. 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 had failed to appear for duly scheduled examinations under oath (EUOs).Contrary to plaintiff’s contention, the proof submitted by defendant in support of its motion was sufficient to demonstrate that plaintiff had failed to appear for the EUOs (see Stephen Fogel Psychological, P.C. v. Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Furthermore, defendant was not required to set forth objective reasons for requesting the EUOs in order to establish its prima facie entitlement to summary judgment, as an insurer need only demonstrate “as a matter of law that it twice duly demanded an [EUO] from the [provider]…that the [provider] twice failed to appear, and that the [insurer] issued a timely denial of the claim[]” (Interboro Ins. Co. v. Clennon, 113 AD3d 596, 597 [2014]; see Parisien v. Metlife Auto & Home, 54 Misc 3d 143[A], 2017 NY Slip Op 50208[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; Palafox PT, P.C. v. State Farm Mut. Auto. Ins. Co., 49 Misc 3d 144[A], 2015 NY Slip Op 51653[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Consequently, plaintiff has not provided any basis to disturb the Civil Court’s order.Accordingly, the order is affirmed.PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.November 16, 2018
