March 28, 2025

MAZ Chiropractic, P.C. v State Farm Ins. Co. (2025 NY Slip Op 50492(U))

Headnote

In this case, the court considered relevant facts pertaining to the failure of the plaintiff, a chiropractic provider seeking to recover no-fault benefits, to appear for duly scheduled examinations under oath (EUOs). The main issue was whether the plaintiff's absence justified the defendant's motion for summary judgment, which sought to dismiss the complaint on these grounds. The court found that the attorney's affirmation regarding the plaintiff's failure to appear was sufficient evidence to establish this absence, noting that the attorney was present and prepared to conduct the EUOs. The court determined that there was no merit to the plaintiff's contention that the attorney's memory of the events was questionable. As a result, the court affirmed the lower court's order granting the defendant's motion to dismiss the complaint.

Reported in New York Official Reports at MAZ Chiropractic, P.C. v State Farm Ins. Co. (2025 NY Slip Op 50492(U))

[*1]

MAZ Chiropractic, P.C. v State Farm Ins. Co.

2025 NY Slip Op 50492(U)

Decided on March 28, 2025

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This opinion is uncorrected and will not be published in the printed Official Reports.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 March 28, 2025

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

PRESENT: : WAVNY TOUSSAINT, P.J., MARINA CORA MUNDY, LISA S. OTTLEY, JJ
2024-405 K C

MAZ Chiropractic, P.C., as Assignee of Yahaira Rodriguez, Appellant,

against

State Farm Insurance Company, Respondent.

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.

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] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]; T & J Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co., 47 Misc 3d 130[A], 2015 NY Slip Op 50406[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). 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 [*2]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.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: March 28, 2025