June 10, 2022
Sanford Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co. (2022 NY Slip Op 50576(U))
https://www.beynensonlaw.com/case-law/sanford-chiropractic-p-c-v-state-farm-mut-auto-ins-co-2022-ny-slip-op50576u/
- Decided
- June 10, 2022
- Citation
- 2022 NY Slip Op 50576(U) · 75 Misc 3d 138(A)
- 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 Sanford Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co. (2022 NY Slip Op 50576(U))
| Sanford Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co. |
| 2022 NY Slip Op 50576(U) [75 Misc 3d 138(A)] |
| Decided on June 10, 2022 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 June 10, 2022
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : THOMAS P. ALIOTTA, P.J., MICHELLE WESTON, CHEREÉ A. BUGGS, JJ
2020-152 K C
against
State Farm Mutual Automobile Ins. Co., Respondent.
The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for appellant. Rivkin Radler, LLP (Stuart M. Bodoff and Cheryl Korman of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Rosemarie Montalbano, J.), entered August 29, 2019. 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 which granted defendant’s motion for summary judgment dismissing the complaint on the ground that plaintiff failed to appear for duly scheduled examinations under oath (EUOs), and denied plaintiff’s cross motion for summary judgment.
Plaintiff’s only contention with respect to defendant’s motion for summary judgment is that the affirmation submitted by defendant’s attorney, who was present in his office to conduct plaintiff’s EUOs on the scheduled dates, was insufficient to establish that plaintiff had failed to appear for the EUOs because it does not “conclusively prove that [counsel] was present at the scheduled start times of the EUOs.” We reject that argument. Counsel, a partner in the law firm representing defendant in this action, stated in his affirmation that the EUOs were scheduled to take place at 10:00 a.m. in his firm’s offices on December 14, 2017 and January 3, 2018; that he was “present in the office” on those days; that no one affiliated with plaintiff appeared for either scheduled EUO; and that if someone had appeared, he “would have conducted the EUO of the Plaintiff or assigned one of the other attorneys authorized to conduct EUOs to conduct the EUO of the Plaintiff.” Contrary to plaintiff’s argument, this affirmation was sufficient to demonstrate, prima facie, that plaintiff failed to appear for the EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; Gentlecare Ambulatory Anesthesia Servs. v Geico Ins. Co., 57 Misc 3d 150[A], 2017 NY Slip Op 51518[U] [App Term, 2d Dept, 2d, 11th [*2]& 13th Jud Dists 2017]), and plaintiff failed to raise a triable issue of fact in response.
Accordingly, the order is affirmed.
ALIOTTA, P.J., WESTON and BUGGS, JJ., concur.
ENTER:Paul Kenny
Chief Clerk
Decision Date: June 10, 2022
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 the affirmation of the attorney present in his office to conduct the EUOs, stating no one appeared, sufficed prima facie to show nonappearance without proof he was present at the exact start times.
Of the 851 decisions on this question in the Second Department courts and the Court of Appeals, 525 (this one included) are in the same category.
Cited in this decision
- Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. (2006 NY Slip Op 09604)An insurer may deny benefits retroactively to the date of loss for failure to attend reasonably required IMEs under 11 NYCRR 65-1.1.
- Gentlecare Ambulatory Anesthesia Servs. v Geico Ins. Co. (2017 NY Slip Op 51518(U))An insurer need not state objective reasons for requesting EUOs to establish prima facie entitlement to summary judgment for nonappearance.
Cited by
A label shows how the later decision treated this one.
- 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.
- SVP Med Supply, Inc. v GEICO (2022 NY Slip Op 50927(U))The insurer's summary judgment dismissing the provider's claims for failure to appear at scheduled EUOs was affirmed.
Similar decisions
- Brefni Chiropractic Diagnostics, P.C. v State Farm Mut. Auto. Ins. Co. (2025 NY Slip Op 51518(U))The insurer's attorney affirmation alone established the provider's EUO nonappearance; corroborating transcripts were unnecessary.
- Flatbush Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co. (2017 NY Slip Op 51494(U))The insurer's attorney's affirmation established the provider's failure to appear for scheduled EUOs. In this assigned no-fault benefits action, the provider's sole appellate contention challenged the sufficiency of the insurer's proof of nonappearance.
- 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.
- Heal-Rite, P.T., P.C. v State Farm Mut. Auto. Ins. Co. (2022 NY Slip Op 51246(U))The insurer established timely mailing of EUO scheduling letters and denials and sufficient proof of nonappearance.
- A.O.T. Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co. (2017 NY Slip Op 50288(U))The insurer's attorney established through personal knowledge that the provider failed to appear for both duly scheduled EUOs. The provider's sole appellate argument challenged proof of nonappearance.