May 18, 2018

Charles Deng Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2018 NY Slip Op 50740(U))

Headnote

The court considered the appeal of a provider seeking to recover first-party no-fault benefits from an automobile insurance company. The main issue was whether the insurance company's motion for summary judgment, which was granted by the lower court, was justified on the grounds that the provider failed to appear for scheduled examinations under oath (EUOs). The court found that the insurance company's evidence was sufficient to establish that the provider had indeed failed to appear for the EUOs, and the provider failed to raise a triable issue of fact in response. As a result, the court affirmed the lower court's decision to grant the insurance company's motion for summary judgment and dismiss the provider's complaint.

Reported in New York Official Reports at Charles Deng Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2018 NY Slip Op 50740(U))

Charles Deng Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2018 NY Slip Op 50740(U)) [*1]

Charles Deng Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co.

2018 NY Slip Op 50740(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This opinion is uncorrected and will not be published in the printed Official Reports.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
2016-75 K C

Charles Deng Acupuncture, P.C., as Assignee of Denard, Jean, 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, Kings County (Robin S. Garson, J.), entered October 26, 2015. 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 arguments, defendant’s proof was sufficient to establish, prima facie, that plaintiff had failed to appear for the scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]), and plaintiff failed to raise a triable issue of fact in response. Plaintiff’s remaining contention lacks merit (see Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2014]; 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]).

Accordingly, the order is affirmed.

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

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