November 9, 2018

Pugsley Chiropractic, PLLC v State Farm Mut. Auto. Ins. Co. (2018 NY Slip Op 51603(U))

Headnote

The court considered the facts that the plaintiff, Pugsley Chiropractic, PLLC, was seeking to recover assigned first-party no-fault benefits from State Farm Mutual Automobile Insurance Co. The main issue decided was whether plaintiff had failed to appear for two scheduled examinations under oath (EUOs). The holding of the case was that defendant had sufficiently established plaintiff's failure to appear for the EUOs, and therefore the court granted defendant's motion for summary judgment dismissing the complaint and denied plaintiff's cross motion for summary judgment. The order was affirmed, and the court declined to review the defendant's argument that the appeal was untimely based on dehors-the-record allegations.

Reported in New York Official Reports at Pugsley Chiropractic, PLLC v State Farm Mut. Auto. Ins. Co. (2018 NY Slip Op 51603(U))

Pugsley Chiropractic, PLLC v State Farm Mut. Auto. Ins. Co. (2018 NY Slip Op 51603(U)) [*1]

Pugsley Chiropractic, PLLC v State Farm Mut. Auto. Ins. Co.

2018 NY Slip Op 51603(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This opinion is uncorrected and will not be published in the printed Official Reports.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
2016-1453 K C

Pugsley Chiropractic, PLLC, as Assignee of Jean Guerline, Appellant,
against
State Farm Mutual Automobile Ins. Co., Respondent.

Gary Tsirelman, P.C. (Darya Klein of counsel), for appellant. Bruno, Gerbino & Soriano, LLP (Nathan Shapiro 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 March 8, 2016. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

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), and denied plaintiff’s cross motion for summary judgment.

Contrary to plaintiff’s contention, defendant sufficiently established plaintiff’s failure to appear for two scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; T & J Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co., 47 Misc 3d 130[A], 2015 NY Slip Op 50406[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).

To the extent defendant seeks to have this appeal dismissed as untimely based upon dehors-the-record allegations included in an appellate appendix, we decline to review its argument. Defendant’s remedy was to make a motion for that relief.

Accordingly, the order is affirmed.

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

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