March 22, 2019

Actual Chiropractic, P.C. v State Farm Ins. (2019 NY Slip Op 50421(U))

Headnote

The court considered the facts that the plaintiff, Actual Chiropractic, P.C., was seeking to recover first-party no-fault benefits from State Farm Insurance and that State Farm had requested the plaintiff to appear for examinations under oath (EUOs) but the plaintiff failed to do so. State Farm issued a timely denial of the claims on the ground that the plaintiff failed to appear for the EUOs. The main issue decided was whether State Farm was entitled to summary judgment dismissing the complaint based on the plaintiff's failure to appear for the scheduled EUOs. The court held that State Farm had established its prima facie entitlement to summary judgment by demonstrating that it twice duly demanded an EUO from the plaintiff, that the plaintiff failed to appear, and that State Farm issued a timely denial of the claims. Therefore, the court reversed the order of the trial court and granted State Farm's motion for summary judgment dismissing the complaint.

Reported in New York Official Reports at Actual Chiropractic, P.C. v State Farm Ins. (2019 NY Slip Op 50421(U))

Actual Chiropractic, P.C. v State Farm Ins. (2019 NY Slip Op 50421(U)) [*1]

Actual Chiropractic, P.C. v State Farm Ins.

2019 NY Slip Op 50421(U) [63 Misc 3d 132(A)]

Decided on March 22, 2019

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This opinion is uncorrected and will not be published in the printed Official Reports.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 22, 2019

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

PRESENT: : MICHAEL L. PESCE, P.J., MICHELLE WESTON, BERNICE D. SIEGAL, JJ
2017-378 K C

Actual Chiropractic, P.C., as Assignee of Albert A. Huggins, Respondent,
against
State Farm Insurance, Appellant.

Rivkin Radler, LLP (Stuart M. Bodoffof counsel), for appellant. Zara Javakov, P.C. (Zara Javakov of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Theresa M. Ciccotto, J.), entered March 16, 2016. 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 had sought 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, defendant was not required to set forth objective reasons for requesting 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 failed to appear and that the [insurer] issued a timely denial of the claims” (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 & 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]; cf. American Tr. Ins. Co. v Jaga Med. Servs., P.C., 128 AD3d 441 [2015]). Here, 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). Plaintiff failed to raise a [*2]triable issue of fact in opposition to defendant’s motion. Consequently, defendant’s motion should have been granted.

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

PESCE, P.J., WESTON and SIEGAL, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: March 22, 2019