September 27, 2019

Actual Chiropractic, P.C. v State Farm Ins. (2019 NY Slip Op 51552(U))

Headnote

The court considered the fact that the plaintiff, Actual Chiropractic, P.C., as Assignee of Wilson Santiago, had failed to appear for duly scheduled examinations under oath (EUOs) after the defendant, State Farm Insurance, had requested them. The main issue decided was whether the defendant was required to set forth objective reasons for requesting the EUOs in order to establish its entitlement to summary judgment. The holding of the case was that the defendant was not required to set forth objective reasons for requesting the EUOs in order to establish its entitlement to summary judgment. This was because an insurer only needs to demonstrate, as a matter of law, that it twice duly demanded an EUO from the provider, the provider twice failed to appear, and the insurer issued a timely denial of the claim. Therefore, the court affirmed the order granting the defendant'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 51552(U))

Actual Chiropractic, P.C. v State Farm Ins. (2019 NY Slip Op 51552(U)) [*1]

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

2019 NY Slip Op 51552(U) [65 Misc 3d 129(A)]

Decided on September 27, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 September 27, 2019

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

PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, BERNICE D. SIEGAL, JJ
2018-650 K C

Actual Chiropractic, P.C., as Assignee of Wilson Santiago, Appellant,
against
State Farm Insurance, Respondent.

Zara Javakov, P.C. (Zara Javakov of counsel), for appellant. Rivkin Radler, LLP, for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Odessa Kennedy, J.), entered November 16, 2017. 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, 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 & 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 SIEGAL, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: September 27, 2019