Opinion
No. 2012–2423QC.
2014-08-20
LOTUS ACUPUNCTURE, P.C. as Assignee of Ligia Disla, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INS. CO., Respondent.
Present: PESCE, P.J., SOLOMON and ELLIOT, JJ.
Appeal from an order of the Civil Court of the City of New York, Queens County (Joseph E. Capella, J.), entered August 3, 2012, deemed from a judgment of the same court entered September 28, 2012 (see CPLR 5501[c] ). The judgment, entered pursuant to the August 3, 2012 order granting defendant's motion for summary judgment dismissing the complaint and denying plaintiff's cross motion to, among other things, disqualify defendant's law firm from representing defendant in this action, 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, insofar as is relevant to this appeal, 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 to plaintiff's failure to appear. Plaintiff cross-moved to, among other things, 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 entered August 3, 2012 granting defendant's motion and denying plaintiff's cross motion. A judgment was subsequently entered dismissing the complaint, from which the appeal is deemed to have been taken ( see CPLR 5501[c] ).
As to defendant's motion for summary judgment, we find that, contrary to plaintiff's arguments on appeal, defendant submitted sufficient proof to show that the EUO scheduling letters and the denial of claim form had been timely mailed ( see St. Vincent's Hosp. of Richmond v. Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v. Chubb Group of Ins., 17 Misc.3d 16 [App Term, 2d & 11th Jud Dists 2007] ), and that plaintiff had failed to appear at either of the duly scheduled EUOs ( see Stephen Fogel Psychological, P.C. v. Progressive Cas. Ins. Co ., 35 AD3d 720 [2006] ). An appearance at an EUO is a condition precedent to an insurer's liability on a policy ( see Insurance Department Regulations [11 NYCRR] § 65–1.1; Stephen Fogel Psychological, P.C., 35 AD3d 720). Therefore, and as plaintiff's remaining contentions with respect to this motion lack merit, we find that the Civil Court properly granted defendant's motion for summary judgment dismissing the complaint.
In light of the foregoing, plaintiff's request that defendant's law firm be disqualified based on the attorney/witness rule is “moot since, summary judgment having been granted, there will be no trial of this matter” ( Quiros v. Mount St. Michael Academy, 303 A.D.2d 185, 186 [2003]; see also Lombino v. Town Bd. of Town of Rye, 206 A.D.2d 462 [1994] ). In any event, plaintiff failed to establish that disqualification of defendant's law firm was warranted ( see S & S Hotel Ventures Ltd. Partnership v. 777 S.H. Corp., 69 N.Y.2d 437 [1987]; see also e.g. Magnus v. Sklover, 95 AD3d 837 [2012]; Matter of Advent Assoc., LLC v. Vogt Family Inv. Partners, L.P., 56 AD3d 1023 [2008]; Hudson Val. Mar., Inc. v. Town of Cortlandt, 54 AD3d 999 [2008]; Daniel Gale Assoc., Inc. v. George, 8 AD3d 608 [2004]; Broadwhite Assoc. v. Truong, 237 A.D.2d 162 [1997]; Matter of Cowen & Co. v. Tecnoconsult Holdings, 234 A.D.2d 86 [1996]; Talvy v. American Red Cross in Greater NY, 205 A.D.2d 143 [1994], affd 87 N.Y.2d 826 [1995]; Kaplan v. Maytex Mills, 187 A.D.2d 565 [1992] ).
Accordingly, the judgment is affirmed.