September 5, 2025
Brefni Chiropractic Diagnostics, P.C. v State Farm Mut. Auto. Ins. Co. (2025 NY Slip Op 51518(U))
https://www.beynensonlaw.com/case-law/brefni-chiropractic-diagnostics-p-c-v-state-farm-mut-auto-ins-co-2025-ny-slip-op-51518u/
- Decided
- September 5, 2025
- Citation
- 2025 NY Slip Op 51518(U)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
- Later treatment
- Followed in 1 later decision (see Cited by)
- Issues
- EUO no-show
- Legal questions
- No-show defense: insurer's proof (see the maps)
Posture, outcome, issues and treatment by other decisions are Beynenson Law’s classification. Treatment labels are assigned by a language model reading the citing decision; negative and appeal-history labels are checked by a second reader.
Summary
Editorial summary by Beynenson Law, not part of the court’s decision.
Reported in New York Official Reports at Brefni Chiropractic Diagnostics, P.C. v State Farm Mut. Auto. Ins. Co. (2025 NY Slip Op 51518(U))
[*1]| Brefni Chiropractic Diagnostics, P.C. v State Farm Mut. Auto. Ins. Co. |
| 2025 NY Slip Op 51518(U) |
| Decided on September 5, 2025 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 September 5, 2025
PRESENT: : MARINA CORA MUNDY, J.P., WAVNY TOUSSAINT, JOANNE D. QUIÑONES, JJ
2024-1292 K C
against
State Farm Mutual Automobile Ins. Co., Appellant.
Rivkin Radler, LLP (Stuart M. Bodoff of counsel), for appellant. Gary Tsirelman, P.C. (David M. Gottlieb of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Sandra E. Roper, J.), entered May 31, 2024. The order, insofar as appealed from and as limited by the brief, 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 appeals, as limited by the brief, from so much of an order of the Civil Court (Sandra E. Roper, J.) entered May 31, 2024 as denied defendant’s motion which had sought summary judgment dismissing the complaint on the ground that plaintiff failed to appear for duly scheduled examinations under oath (EUOs). As relevant here, the Civil Court found, pursuant to CPLR 3212 (g), that defendant had timely and properly mailed the letters scheduling plaintiff’s EUOs and the denial of claim forms, and limited the issues for trial to whether plaintiff failed to appear for the EUOs. The Civil Court held that defendant had not made a prima facie showing of plaintiff’s failure to appear for the scheduled EUOs because defendant did not submit the EUO transcripts to corroborate the attorney’s affirmation that was proffered to demonstrate plaintiff’s failures to appear.
Defendant demonstrated, prima facie, that plaintiff failed to appear for duly scheduled EUOs by submitting the affirmation of an attorney averring that he was present in his firm’s office, where the EUOs were scheduled to take place, on the dates on which the EUOs were scheduled; that he would have either conducted the EUOs himself or assigned another attorney to [*2]do so had plaintiff appeared for either scheduled EUO; and that plaintiff did not appear on either date (see e.g. MAZ Chiropractic, P.C. v State Farm Ins. Co., 85 Misc 3d 135[A], 2025 NY Slip Op 50492[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2025]; SVP Med Supply, Inc. v GEICO, 76 Misc 3d 134[A], 2022 NY Slip Op 50931[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]; SVP Med Supply, Inc. v GEICO, 76 Misc 3d 127[A], 2022 NY Slip Op 50775[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]; Parisien v Ameriprise Auto & Home, 75 Misc 3d 138[A], 2022 NY Slip Op 50581[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]). To the extent that plaintiff contends that an issue exists with respect to defendant’s counsel’s recollection of plaintiff’s failure to appear, such a contention lacks merit, as, on its face, counsel’s affirmation was not “unworthy of belief or incredible as a matter of law” (Joseph-Felix v Hersh, 208 AD3d 571, 573 [2022]; see e.g. MAZ Chiropractic, P.C. v State Farm Ins. Co., 2025 NY Slip Op 50492[U], *1-2; SVP Med Supply, Inc. v GEICO, 2022 NY Slip Op 50931[U], *2). Consequently, this affirmation, standing alone, was sufficient proof of plaintiff’s failure to appear for the EUOs, and, contrary to the determination of the Civil Court, submission of the EUO transcripts was unnecessary (see e.g. Nationwide Affinity Ins. Co. of Am. v George, 183 AD3d 755, 757 [2020]; SVP Med Supply, Inc. v GEICO, 2022 NY Slip Op 50931[U]; SVP Med Supply, Inc. v GEICO, 2022 NY Slip Op 50775[U]; Parisien v Ameriprise Auto & Home, 2022 NY Slip Op 50581[U]).
As plaintiff failed to raise a triable issue of fact regarding its failure to appear for either scheduled EUO or challenge the CPLR 3212 (g) findings in defendant’s favor, defendant is entitled to summary judgment dismissing the complaint.
Accordingly, the order, insofar as appealed from, is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.
MUNDY, J.P., TOUSSAINT and QUIÑONES, JJ., concur.
ENTER:Paul Kenny
Chief Clerk
Decision Date: September 5, 2025
Legal questions
A question of no-fault law this decision rules on, from our Legal Questions pages. Bars count the decisions on the question by year and court, coloured by category; circles are this decision and the decisions on the question it cites or that cite it. Point at a bar or circle for details. The categories and summaries are Beynenson Law’s classification, made by a language model and checked by a second reading.
Did the insurer prove its IME/EUO no-show defense: mailed, compliant scheduling requests and the claimant’s nonappearance?
This decision: Insurer proved mailed, compliant requests and the nonappearance; claimant's answers rejected
Held an attorney's affirmation that he was present at the EUO site and the provider did not appear sufficed to prove nonappearance without transcripts.
Of the 858 decisions on this question in the Second Department courts and the Court of Appeals, 527 (this one included) are in the same category.
Cited in this decision
A label shows how this decision treated the case it cites.
- MAZ Chiropractic, P.C. v State Farm Ins. Co. (2025 NY Slip Op 50492(U)) FollowedThe insurer's attorney affirmation established the provider's failure to appear for scheduled EUOs. The affirmation recounted counsel's presence at the scheduled location, intention to conduct the EUOs if the provider appeared, and personal knowledge of the nonappearances.
- SVP Med Supply, Inc. v GEICO (2022 NY Slip Op 50931(U)) FollowedThe insurer's attorney's affirmation established the provider's failure to appear for scheduled EUOs. The attorney stated that she was present at the scheduled location and would have conducted the EUOs had the provider appeared, establishing personal knowledge of the nonappearances.
- SVP Med Supply, Inc. v GEICO (2022 NY Slip Op 50775(U)) FollowedThe insurer's attorney affirmation established the provider's EUO nonappearances without specifying a particular time of day.
- Nationwide Affinity Ins. Co. of Am. v George (2020 NY Slip Op 02801) FollowedThe insurer proved timely EUO notices, two nonappearances by each assignor, and timely denials; the providers raised no factual issue.
Cited by
A label shows how the later decision treated this one.
- GC Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co. (2025 NY Slip Op 51982(U)) FollowedThe insurer's attorney affirmation established the provider's EUO nonappearances despite being executed approximately three years later.
Similar decisions
- Sanford Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co. (2022 NY Slip Op 50576(U))The insurer's attorney's affirmation established the provider's EUO nonappearances despite a challenge to proof of presence at the start times.
- Bronx Chiropractic Care, P.C. v State Farm Ins. (2019 NY Slip Op 51041(U))The insurer's transfer of claims between offices and the location generating timely EUO letters did not raise a triable issue.
- Bridgeview Supply Corp. v Nationwide Mut. Ins. Co. (2026 NY Slip Op 50190(U))An insurer need not state objective reasons for requesting EUOs as part of its prima facie showing for summary judgment based on nonappearance.
- BNE Clinton Med., P.C. v State Farm Mut. Auto Ins. Co. (2021 NY Slip Op 50083(U))An insurer seeking summary judgment for EUO nonappearance need not prove timely mailing of prescribed forms upon learning of the accident.
- Actual Chiropractic, P.C. v State Farm Ins. (2019 NY Slip Op 50421(U))An insurer need not state objective reasons for requesting EUOs to establish entitlement to summary judgment for nonappearance.