November 2, 2018

Island Life Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co. (2018 NY Slip Op 51551(U))

Headnote

The court considered the facts that Island Life Chiropractic, P.C. was seeking to recover first-party no-fault benefits and that State Farm Mutual Automobile Insurance Co. had denied the claims on the grounds that the plaintiff's assignor had failed to appear for scheduled examinations under oath. State Farm had mailed initial and follow-up letters scheduling the examinations and the plaintiff's assignor had failed to appear on either date. The main issue decided was whether State Farm's motion for summary judgment dismissing the complaint should be granted. The holding of the case was that as the plaintiff failed to raise a triable issue of fact in opposition to State Farm's motion, State Farm was entitled to summary judgment dismissing the complaint. Therefore, the order was reversed and State Farm's motion for summary judgment dismissing the complaint was granted.

Reported in New York Official Reports at Island Life Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co. (2018 NY Slip Op 51551(U))

Island Life Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co. (2018 NY Slip Op 51551(U)) [*1]

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

2018 NY Slip Op 51551(U) [61 Misc 3d 136(A)]

Decided on November 2, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 2, 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
2016-305 K C

Island Life Chiropractic, P.C., as Assignee of Jean, Patrick, Respondent,
against
State Farm Mutual Automobile Ins. Co., Appellant.

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered December 11, 2015. The order denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court which denied defendant’s motion, which had sought summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for duly scheduled examinations under oath (EUOs).

In its motion, defendant established that initial and follow-up letters scheduling an EUO had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]); that plaintiff’s assignor had failed to appear on either date (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]); and that the claims had been timely denied on that ground (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123). As plaintiff failed to raise a triable issue of fact in opposition to defendant’s motion, defendant is entitled to summary judgment dismissing the complaint.

Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 02, 2018