May 18, 2018

Acupuncture Healthcare Plaza I, P.C. v State Farm Mut. Auto. Ins. Co. (2018 NY Slip Op 50738(U))

Headnote

The court considered whether Acupuncture Healthcare Plaza I, P.C. was entitled to recover assigned first-party no-fault benefits from State Farm Mutual Automobile Insurance Co. The main issue was whether the plaintiff failed to appear for duly scheduled examinations under oath (EUOs) and if this failure justified the denial of the motion for summary judgment. The court held that the order denying plaintiff's motion for summary judgment and granting defendant's cross motion for summary judgment dismissing the complaint was affirmed, with costs of $25. The decision was based on the plaintiff's failure to appear for the scheduled EUOs, which was consistent with a previous case, Charles Deng Acupuncture, P.C., as Assignee of Denard, Jean v State Farm Mut. Auto. Ins. Co. The decision was unanimous.

Reported in New York Official Reports at Acupuncture Healthcare Plaza I, P.C. v State Farm Mut. Auto. Ins. Co. (2018 NY Slip Op 50738(U))

Acupuncture Healthcare Plaza I, P.C. v State Farm Mut. Auto. Ins. Co. (2018 NY Slip Op 50738(U)) [*1]

Acupuncture Healthcare Plaza I, P.C. v State Farm Mut. Auto. Ins. Co.

2018 NY Slip Op 50738(U) [59 Misc 3d 145(A)]

Decided on May 18, 2018

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This opinion is uncorrected and will not be published in the printed Official Reports.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 May 18, 2018

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

PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2015-2411 Q C

Acupuncture Healthcare Plaza I, P.C., as Assignee of Cherry, Sharmaine, Appellant,
against
State Farm Mutual Automobile Ins. Co., Respondent.

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Rivkin Radler, LLP (Cheryl F. Korman and Stuart M. Bodoff of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Larry Love, J.), entered November 3, 2014. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross 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 denied plaintiff’s motion for summary judgment, and granted defendant’s cross motion for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs).

For the reasons stated in Charles Deng Acupuncture, P.C., as Assignee of Denard, Jean v State Farm Mut. Auto. Ins. Co. (___ Misc 3d ____, 2018 NY Slip Op _____ [appeal No. 2016-75 K C], decided herewith), the order is affirmed.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: May 18, 2018