March 1, 2019

Oleg’s Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2019 NY Slip Op 51049(U))

Headnote

The court considered the fact that the insurance company moved for summary judgment to dismiss the complaint on the grounds that the plaintiff failed to appear for scheduled examinations under oath (EUOs). The main issue decided was whether the insurance company was entitled to summary judgment dismissing the complaint based on the failure of the plaintiff to appear for the EUOs. The holding of the court was that the insurance company was indeed entitled to summary judgment dismissing the complaint. The court found that the insurance company had established the timely and proper mailing of the EUO scheduling letters and denial of claim forms, as well as the plaintiff's failure to appear for the EUOs. Therefore, the only remaining issues for trial were the plaintiff's prima facie case and an issue of fact regarding a discrepancy in the EUO request letters.

Reported in New York Official Reports at Oleg’s Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2019 NY Slip Op 51049(U))

Oleg’s Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2019 NY Slip Op 51049(U)) [*1]

Oleg’s Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co.

2019 NY Slip Op 51049(U) [64 Misc 3d 131(A)]

Decided on March 1, 2019

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This opinion is uncorrected and will not be published in the printed Official Reports.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 March 1, 2019

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

PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, BERNICE D. SIEGAL, JJ
2016-2132 K C

Oleg’s Acupuncture, P.C., as Assignee of Shawnta Fonseca, Respondent,
against
State Farm Mutual Automobile Ins. Co., Appellant.

Rivkin Radler, LLP (Stuart M. Bodoff and Cheryl F. Korman of counsel), for appellant. Gary Tsirelman, P.C. (Douglas Mace 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 June 10, 2016. The order, insofar as appealed from, denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, 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 moved for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs). By order entered June 10, 2016, the Civil Court denied the motion, but found, in effect pursuant to CPLR 3212 (g), that defendant had established the timely and proper mailing of the EUO scheduling letters and denial of claim forms, as well as plaintiff’s failure to appear for the EUOs. The Civil Court further found that the only remaining issues for trial were plaintiff’s prima facie case and “an issue of fact regarding the discrepancy between the person stated to be the contact for defense counsel in the EUO request letters and the person signing the affirmation regarding plaintiff’s failure to appear.” Defendant appeals, contending that it was entitled to summary judgment dismissing the complaint.

For the reasons stated in Oleg’s Acupuncture P.C., as Assignee of Kevin Adams v State Farm Mut. Auto. Ins. Co. (___ Misc 3d ___, 2019 NY Slip Op _____ [appeal No. 2016-2048 K C], decided herewith), the order, insofar as appealed from, is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: March 01, 2019