November 3, 2017

Flatbush Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co. (2017 NY Slip Op 51494(U))

Headnote

The court considered an appeal from an order of the Civil Court of the City of New York, Kings County, which granted the defendant's motion for summary judgment dismissing the complaint. The main issue decided was whether the plaintiff had failed to appear for duly scheduled examinations under oath (EUOs), which would result in the dismissal of the complaint. The holding of the case was that the affirmation submitted by the defendant's attorney was sufficient to establish that the plaintiff had indeed failed to appear for the EUOs, and therefore the order granting the defendant's motion for summary judgment was affirmed.

Reported in New York Official Reports at Flatbush Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co. (2017 NY Slip Op 51494(U))

Flatbush Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co. (2017 NY Slip Op 51494(U)) [*1]

Flatbush Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co.

2017 NY Slip Op 51494(U) [57 Misc 3d 148(A)]

Decided on November 3, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 November 3, 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
2014-2172 K C

Flatbush Chiropractic, P.C., as Assignee of Silface, Gala, Appellant,
against
State Farm Mutual Automobile Ins. Co., Respondent.

The Rybak Firm, PLLC (Damin J. Toell, 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 (Carol Ruth Feinman, J.), entered July 10, 2014. 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 sole contention, the affirmation submitted by defendant’s attorney, who was present in his 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]).

Accordingly, the order is affirmed.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 03, 2017