2024-405 KC. Supreme Court, Appellate Term, Second Department. Decided March 28, 2025.
Appeal from an order of the Civil Court of the City of New York, Kings County (Edward H. King, J.), entered September 28, 2023. Law Office of David Paul Horowitz, PLLC (David Paul Horowitz and Katryna L. Kristoferson of counsel), for appellant. Rivkin Radler, LLP (Stuart M. Bodoff and Cheryl F. Korman of counsel), for respondent.
PRESENT: WAVNY TOUSSAINT, P.J., MARINA CORA MUNDY, LISA S. OTTLEY, JJ.
Appeal from an order of the Civil Court of the City of New York, Kings County (Edward H. King, J.), entered September 28, 2023. The order, insofar as appealed from as limited by the brief, granted defendant’s 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 appeals from so much of an order of the Civil Court (Edward H. King, J.) entered September 28, 2023 as 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 sole contention on appeal, the affirmation submitted by the attorney who was to conduct the scheduled EUOs was sufficient to establish that plaintiff had failed to appear. The attorney stated that he was present at the location of the scheduled EUOs, that he would have conducted the EUOs if plaintiff had appeared, and that he possessed personal knowledge that plaintiff had failed to appear (see Hertz Corp. v. Active Care Med. Supply Corp., 124 AD3d 411 [2015]; SVP Med Supply, Inc. v. GEICO, 76 Misc 3d 134[A], 2022 NY Slip Op 50931[U]).
To the extent plaintiff contends that an issue existed with respect to counsel’s recollection of plaintiff’s failure to appear, such a contention is without merit, as, on its face, counsel’s affirmation was not unworthy of belief (see e.g. Joseph-Felix v. Hersh, 208 AD3d 571 [2022]; SVP Med Supply, Inc., 2022 NY Slip Op 50931[U]).
Accordingly, the order, insofar as appealed from, is affirmed.
TOUSSAINT, P.J. and MUNDY, J., concur. OTTLEY, J., taking no part.