Opinion
No. 2013–2771QC.
10-13-2016
INTEGRATIVE PAIN MEDICINE, P.C., as Assignee of Ahmad Maqsood, Respondent, v. PRAETORIAN INS. CO., Appellant.
Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered September 19, 2013. The order, insofar as appealed from and as limited by the brief, denied defendant's cross motion for summary judgment dismissing the complaint.
ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint on the ground that plaintiff's assignor had failed to appear for duly scheduled examinations under oath (EUOs). The Civil Court denied both motions, but, in effect, limited the issue for trial, pursuant to CPLR 3212(g), to whether the EUO scheduling letters had been properly mailed. As limited by its brief, defendant appeals from so much of the order as denied its cross motion for summary judgment.
The proof submitted by defendant in support of its cross motion failed to establish a practice and procedure sufficient to give rise to a presumption that the EUO scheduling letters had been properly mailed (see St. Vincent's Hosp. of Richmond v. Government Empls. Ins. Co., 50 AD3d 1123 [2008] ; J.M. Chiropractic Servs., PLLC v. State Farm Mut. Ins. Co., 36 Misc.3d 135[A], 2012 N.Y. Slip Op 51348[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012] ).
Accordingly, the order, insofar as appealed from, is affirmed.
PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.