September 27, 2016

Stracar Med. Servs. v State Farm Mut. Auto. Ins. Co. (2016 NY Slip Op 51415(U))

Headnote

The court considered a case where a medical services provider, as the assignee of a patient, was seeking to recover first-party no-fault benefits from an insurance company. The insurance company had filed a motion for summary judgment to dismiss the complaint based on the medical provider's failure to appear for scheduled examinations under oath (EUOs). The main issue decided was whether the insurance company had sufficiently established the medical provider's failure to appear for the scheduled EUOs. The court held that the insurance company had indeed established the medical provider's failure to appear, citing previous cases with similar rulings. The court also rejected the medical provider's argument that the motion was premature and that discovery regarding the propriety of the EUO demands was necessary, stating that the medical provider had not responded to the EUO requests and therefore could not raise any objection to their reasonableness. As a result, the court affirmed the order granting the insurance company's motion for summary judgment.

Reported in New York Official Reports at Stracar Med. Servs. v State Farm Mut. Auto. Ins. Co. (2016 NY Slip Op 51415(U))

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

Stracar Medical Services, as Assignee of FREDDIE M. VELEZ, 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 (Dawn Jimenez Salta, J.), entered September 14, 2012. 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. Defendant’s motion was based on plaintiff’s failure to appear for duly scheduled examinations under oath (EUOs).

Contrary to plaintiff’s contention, defendant sufficiently established plaintiff’s failure to appear for the two duly scheduled EUOs (see e.g. 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]; Natural Therapy Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 44 Misc 3d 141[A], 2014 NY Slip Op 51310[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]).

Plaintiff further argues that defendant’s motion was premature, in that plaintiff was entitled to discovery regarding the propriety of defendant’s EUO demands. However, plaintiff failed to allege, much less prove, that it had responded in any way to the EUO requests at issue, and therefore it cannot raise any objection to the reasonableness of those requests in litigation (see e.g. T & J Chiropractic, P.C., 47 Misc 3d 130[A], 2015 NY Slip Op 50406[U]; Metro Health Prods., Inc. v State Farm Mut. Auto. Ins. Co., 47 Misc 3d 127[A], 2015 NY Slip Op 50402[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Consequently, discovery relevant to the reasonableness of the EUO requests was not necessary for plaintiff to oppose defendant’s motion (see CPLR 3212 [f]; Interboro Ins. Co. v Clennon, 113 AD3d 596 [2014]; Palafox PT, P.C. v State Farm Mut. Auto. Ins. Co., 49 Misc 3d 144[A], 2015 NY Slip Op 51653[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; T & J Chiropractic, P.C., 47 Misc 3d 130[A], 2015 NY Slip Op 50406[U]; Metro Health Prods., Inc., 47 Misc 3d 127[A], 2015 NY Slip Op 50402[U]).

Accordingly, the order is affirmed.

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Decision Date: September 27, 2016