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Appellate Term, Second Department:July 24, 2019

Appellate Term, Second Department:July 24, 2019

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Second, Eleventh and Thirteenth JudicIal DistrictsCases Released on: July 24, 2019

By: Pesce, P.J., Weston, Aliotta, JJ.The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant.Law Offices of Bryan M. Rothenberg (Konstantinos Tsirkas of counsel), for respondent.2017-615 K C. MOLLO v. 21ST CENTURY INS. CO. — Appeal from an order of the Civil Court of the City of New York, Kings County (Theresa M. Ciccotto, J.), entered February 2, 2017. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross 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 denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint. Plaintiff correctly contends that certain letters from defendant were delay letters which failed to toll defendant’s time to pay or deny the claims. However, defendant’s motion also included copies of the examination under oath (EUO) scheduling letters which were timely mailed by the law firm retained by defendant to conduct the EUOs, and plaintiff has raised no issue with respect to the sufficiency of those letters (see St. Vincent’s Hosp. of Richmond v. Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Great Health Care Chiropractic, P.C. v. Nationwide Ins., 46 Misc 3d 130[A], 2014 NY Slip Op 51812[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]). Additionally, contrary to plaintiff’s argument, the affidavits submitted by defendant sufficiently established the timely mailing of the denial of claim forms (see St. Vincent’s Hosp. of Richmond v. Government Empls. Ins. Co., 50 AD3d 1123).Accordingly, the order is affirmed.PESCE, P.J., WESTON and ALIOTTA, JJ., concur.July 19, 2019

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