November 16, 2018

LMS Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2018 NY Slip Op 51655(U))

Headnote

The court considered a motion for summary judgment dismissing the complaint in an action by a provider to recover assigned first-party no-fault benefits. The main issue was whether the defendant demonstrated that the plaintiff had failed to appear for examinations under oath (EUOs) and if the defendant was required to set forth objective reasons for requesting the EUOs to establish its entitlement to summary judgment. The court held that the proof submitted by the defendant was sufficient to demonstrate that the plaintiff had failed to appear for the EUOs, and that the defendant was not required to set forth objective reasons for requesting the EUOs to establish its entitlement to summary judgment. Therefore, the court affirmed the order granting the defendant's motion for summary judgment dismissing the complaint.

Reported in New York Official Reports at LMS Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2018 NY Slip Op 51655(U))

LMS Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2018 NY Slip Op 51655(U)) [*1]

LMS Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co.

2018 NY Slip Op 51655(U) [61 Misc 3d 143(A)]

Decided on November 16, 2018

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This opinion is uncorrected and will not be published in the printed Official Reports.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 November 16, 2018

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

PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2016-2035 K C

LMS Acupuncture, P.C., as Assignee of Murray, Caheim, Appellant,
against
State Farm Mutual Automobile Ins. Co., Respondent.

The Rybak Firm, PLLC (Damin J. Toell 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 (Devin P. Cohen, J.), entered May 31, 2016. 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 which 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 contention, the proof submitted by defendant in support of its motion was sufficient to demonstrate that plaintiff had failed to appear for the EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Furthermore, defendant was not required to set forth objective reasons for requesting the EUOs in order to establish its prima facie entitlement to summary judgment, as an insurer need only demonstrate “as a matter of law that it twice duly demanded an [EUO] from the [provider] . . . that the [provider] twice failed to appear, and that the [insurer] issued a timely denial of the claim[]” (Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2014]; see Parisien v Metlife Auto & Home, 54 Misc 3d 143[A], 2017 NY Slip Op 50208[U] [App Term, 2d Dept, 2d, 11th & [*2]13th Jud Dists 2017]; Palafox PT, P.C. v State Farm Mut. Auto. Ins. Co., 49 Misc 3d 144[A], 2015 NY Slip Op 51653[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).

Accordingly, the order is affirmed.

PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 16, 2018