September 8, 2017

LMS Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2017 NY Slip Op 51137(U))

Headnote

The court considered whether the plaintiff, LMS Acupuncture, P.C., had failed to appear for scheduled examinations under oath (EUOs) as required by the defendant, State Farm Mutual Automobile Ins. Co., in order to recover first-party no-fault benefits. The defendant appealed from an order of the Civil Court denying their motion for summary judgment dismissing the complaint. The main issue decided was whether the plaintiff had failed to appear for the EUOs, and if so, whether the claims had been timely denied on that ground. The holding of the case was that the defendant was entitled to summary judgment dismissing the complaint, as the plaintiff had failed to raise a triable issue of fact in opposition to the defendant's motion. Therefore, the defendant's motion for summary judgment was granted and the order of the Civil Court was reversed.

Reported in New York Official Reports at LMS Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2017 NY Slip Op 51137(U))

LMS Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2017 NY Slip Op 51137(U)) [*1]

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

2017 NY Slip Op 51137(U) [57 Misc 3d 126(A)]

Decided on September 8, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 September 8, 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
2014-1030 K C

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

Rivkin Radler, LLP (Stuart M. Bodoff, Esq.), for appellant. The Rybak Firm, PLLC (Damin J. Toell, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Devin P. Cohen, J.), entered February 7, 2014. The order denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court denying defendant’s motion which sought summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs).

In its motion, defendant established that initial and follow-up letters scheduling an EUO had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]); that plaintiff had failed to appear on either date (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]); and that the claims had been timely denied on that ground (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123). As plaintiff failed to raise a triable issue of fact in opposition to defendant’s motion, defendant is [*2]entitled to summary judgment dismissing the complaint.

Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.

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

Paul Kenny
Chief Clerk
Decision Date: September 08, 2017