November 9, 2018

Blackman v State Farm Mut. Auto. Ins. Co. (2018 NY Slip Op 51606(U))

Headnote

The court considered the facts that the plaintiff, Noel Blackman, M.D., was seeking to recover first-party no-fault benefits as the assignee of Tyshaun Owens. The defendant, State Farm Mutual Automobile Insurance Company, moved for summary judgment to dismiss the complaint on the basis that Owens had failed to appear for scheduled examinations under oath (EUOs). The court found that the defendant had provided sufficient proof of the proper mailing of the EUO scheduling letters and that Owens had indeed failed to appear for the EUOs. As a result, the court affirmed the order to dismiss the complaint, with $25 costs. The main issue decided in this case was whether the defendant had provided sufficient proof of the proper mailing of the EUO scheduling letters and whether Owens had failed to appear for the EUOs. The holding of the case was that the defendant did indeed provide sufficient proof, and as a result, the court affirmed the order to dismiss the complaint.

Reported in New York Official Reports at Blackman v State Farm Mut. Auto. Ins. Co. (2018 NY Slip Op 51606(U))

Blackman v State Farm Mut. Auto. Ins. Co. (2018 NY Slip Op 51606(U)) [*1]

Blackman v State Farm Mut. Auto. Ins. Co.

2018 NY Slip Op 51606(U) [61 Misc 3d 140(A)]

Decided on November 9, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 November 9, 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
2016-1748 K C

Noel E. Blackman, M.D., as Assignee of Owens, Tyshaun, Appellant,
against
State Farm Mutual Automobile Ins. Co., Respondent.

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered April 12, 2016. 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’s assignor had failed to appear for duly scheduled examinations under oath (EUOs).

Contrary to plaintiff’s contention, the proof submitted by defendant was sufficient to establish the proper mailing of the EUO scheduling letters (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) and that plaintiff’s assignor had failed to appear for the EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Plaintiff’s remaining contention lacks merit.

Accordingly, the order is affirmed.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 09, 2018