August 26, 2013

Canarsie Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co. (2013 NY Slip Op 51457(U))

Headnote

The relevant facts considered by the court were that the plaintiff, Canarsie Chiropractic, P.C., was seeking to recover assigned first-party no-fault benefits from State Farm Mutual Automobile Insurance Co. The main issue decided was whether the plaintiff had failed to comply with a condition precedent to coverage by not appearing for scheduled examinations under oath (EUOs). The court affirmed the order of the Civil Court, granting State Farm's motion for summary judgment dismissing the complaint, as the affidavits submitted by State Farm established that the EUO scheduling letters and denial of claim forms had been timely mailed. The holding of the case was that since the plaintiff did not respond in any way to the EUO requests, their objections regarding the EUO requests would not be heard, and therefore discovery relevant to the reasonableness of the EUO requests was not necessary to oppose the motion.

Reported in New York Official Reports at Canarsie Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co. (2013 NY Slip Op 51457(U))

Canarsie Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co. (2013 NY Slip Op 51457(U)) [*1]

Canarsie Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co.

2013 NY Slip Op 51457(U) [40 Misc 3d 140(A)]

Decided on August 26, 2013

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This opinion is uncorrected and will not be published in the printed Official Reports.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 August 26, 2013

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ
2011-2421 K C.

Canarsie Chiropractic, P.C. as Assignee of JULIANA FELIX, Appellant, —
against
State Farm Mutual Automobile Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Pamela L. Fisher, J.), entered June 14, 2011. 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, finding that plaintiff had failed to comply with a condition precedent to coverage in that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs). Plaintiff argues that defendant failed to prove that it had timely mailed its EUO scheduling letters and denial of claim forms, that defendant’s EUO requests were not justified, and that defendant’s motion should have been denied pursuant to CPLR 3212 (f).

Contrary to plaintiff’s argument, the affidavits submitted by defendant established that the EUO scheduling letters and the denial of claim forms had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Since plaintiff does not claim to have responded in any way to the EUO requests, its objections regarding the EUO requests will not be heard (see Viviane Etienne Med. Care, P.C. v State Farm Mut. Auto. Ins. Co., 35 Misc 3d 127[A], 2012 NY Slip Op 50579[U] [App Term, 2d, 11th & 13th Jud Dists 2012]; Crescent Radiology, PLLC v American Tr. Ins. Co., 31 Misc 3d 134[A], 2011 NY Slip Op 50622[U] [App Term, 9th & 10th Jud Dists 2011]), and therefore discovery relevant to the reasonableness of the EUO requests was not necessary to oppose the motion (see CPLR 3212 [f]).

Accordingly, the order is affirmed.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: August 26, 2013