Warton Supplies, Inc. v. GEICO Indem. Co. ( 2024 )

Warton Supplies, Inc. v GEICO Indem. Co. (2024 NY Slip Op 50071(U)) [*1]

Warton Supplies, Inc. v GEICO Indem. Co.

2024 NY Slip Op 50071(U)

Decided on January 19, 2024

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on January 19, 2024

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : WAVNY TOUSSAINT, P.J., MARINA CORA MUNDY, LISA S. OTTLEY, JJ
2022-1014 K C

Warton Supplies, Inc., as Assignee of Amani Castello, Appellant,

against

GEICO Indemnity Company, Respondent.

Kopelevich & Feldsherova, P.C. (David Landfair of counsel), for appellant. Rivkin Radler, LLP (Stuart M. Bodoff of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Harriet L. Thompson, J.), entered November 21, 2018. 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 granting defendant's motion for summary judgment dismissing the complaint on the ground that plaintiff failed to appear for duly scheduled examinations under oath (EUOs).

Plaintiff's sole contention on appeal is that, pursuant to CPLR 2106 (a), the attorney affirmation that defendant submitted to establish that plaintiff had failed to appear for the EUOs was not admissible since the affirming attorney was employed by a law firm as "staff counsel" to defendant. Such an argument lacks merit (see Matter of Reid v Rochdale Vil., Inc., 137 AD3d 797 [2016]; Warton Supplies, Inc. v GEICO Indem. Co., 76 Misc 3d 126[A], 2022 NY Slip Op 50770[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]; Warton Supplies, Inc. v GEICO (Gov Empls.), 73 Misc 3d 146[A], 2021 NY Slip Op 51253[U] [App Term, 2d Dept, 2d, [*2]11th & 13th Jud Dists 2021]).

Accordingly, the order is affirmed.

TOUSSAINT, P.J., MUNDY and OTTLEY, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: January 19, 2024