Actual Chiropractic, P.C. v. State Farm Ins.

• Court: Appellate Terms of the Supreme Court of New York
• Decided: March 22, 2019
• Docket: 2019 NYSlipOp 50421(U)
• Status: Published

Opinion

Actual Chiropractic, P.C., as Assignee of Albert A. Huggins, Respondent,

against

State Farm Insurance, Appellant.

Rivkin Radler, LLP (Stuart M. Bodoffof counsel), for appellant. Zara Javakov, P.C. (Zara Javakov of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Theresa M. Ciccotto, J.), entered March 16, 2016. 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 denying defendant's motion which had sought 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 contention, defendant was not required to set forth objective reasons for requesting EUOs in order to establish its prima facie entitlement to summary judgment, as an insurer need only demonstrate "as a matter of law that it twice duly demanded an [EUO] from the [provider] . . . that the provider failed to appear and that the [insurer] issued a timely denial of the claims" (Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2014]; see 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]; 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]; cf. American Tr. Ins. Co. v Jaga Med. Servs., P.C., 128 AD3d 441 [2015]). Here, 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 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). Plaintiff failed to raise a [*2]triable issue of fact in opposition to defendant's motion. Consequently, defendant's motion should have been granted.

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

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: March 22, 2019