December 15, 2017

Stracar Med. Servs., P.C. v State Farm Mut. Auto. Ins. Co. (2017 NY Slip Op 51753(U))

Headnote

The court considered the fact that the plaintiff had failed to appear for scheduled examinations under oath (EUOs) as required for the recovery of assigned first-party no-fault benefits. The main issue decided was whether the affirmation submitted by the defendant's attorney, who was present in her office to conduct the EUOs on the scheduled dates, was sufficient to establish that the plaintiff had failed to appear for the EUOs. The court held that the affirmation submitted by the defendant's attorney was indeed sufficient to establish that the plaintiff had failed to appear for the EUOs, and therefore affirmed the order granting the defendant's motion for summary judgment dismissing the complaint.

Reported in New York Official Reports at Stracar Med. Servs., P.C. v State Farm Mut. Auto. Ins. Co. (2017 NY Slip Op 51753(U))

Stracar Med. Servs., P.C. v State Farm Mut. Auto. Ins. Co. (2017 NY Slip Op 51753(U)) [*1]

Stracar Med. Servs., P.C. v State Farm Mut. Auto. Ins. Co.

2017 NY Slip Op 51753(U) [58 Misc 3d 130(A)]

Decided on December 15, 2017

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This opinion is uncorrected and will not be published in the printed Official Reports.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 December 15, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2014-748 K C

Stracar Medical Services, P.C., as Assignee of Freddie M. Velez, Appellant,
against
State Farm Mutual Automobile Ins. Co., Respondent.

Gary Tsirelman, P.C. (Irena Golodkeyer, Esq.) for appellant. Rivkin Radler, LLP (Stuart M. Bodoff, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Dawn Jimenez Salta, J.), entered September 14, 2012. 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 affirmation submitted by defendant’s attorney, who was present in her office to conduct plaintiff’s EUO on the scheduled dates, was sufficient to establish that plaintiff had failed to appear for the EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Plaintiff’s remaining contentions either lack merit or are improperly raised for the first time on appeal.

Accordingly, the order is affirmed.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 15, 2017k