February 5, 2021

BNE Clinton Med., P.C. v State Farm Mut. Auto Ins. Co. (2021 NY Slip Op 50083(U))

https://www.beynensonlaw.com/case-law/bne-clinton-med-p-c-v-state-farm-mut-auto-ins-co-2021-ny-slip-op50083u/

Court: Appellate Term, Second Department
Decided: February 5, 2021
Citation: 2021 NY Slip Op 50083(U) · 70 Misc 3d 138(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Later treatment: Followed in 1 later decision (see Cited by)
Issues: EUO no-show Timeliness and preclusion Discovery and procedure
Legal questions: No-show defense: insurer's proof (see the maps)

Cite as

BNE Clinton Med., P.C. v State Farm Mut. Auto Ins. Co., 70 Misc 3d 138(A), 2021 NY Slip Op 50083(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021)

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.

An insurer seeking summary judgment for EUO nonappearance need not prove timely mailing of prescribed forms upon learning of the accident. The provider challenged the insurer's prima facie showing based on the absence of proof under 11 NYCRR 65-3.4. Following Interboro Ins. Co. v Clennon, the court rejected that contention. The provider also sought disqualification under Rules of Professional Conduct (22 NYCRR 1200.0) rule 3.7 because a partner in the insurer's law firm had affirmed the provider's EUO nonappearance. That contention failed for the reasons stated in Lotus Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. The Appellate Term, Second Department, affirmed summary judgment dismissing the complaint and denial of disqualification.

Reported in New York Official Reports at BNE Clinton Med., P.C. v State Farm Mut. Auto Ins. Co. (2021 NY Slip Op 50083(U))

[*1]

BNE Clinton Med., P.C. v State Farm Mut. Auto Ins. Co.

2021 NY Slip Op 50083(U) [70 Misc 3d 138(A)]

Decided on February 5, 2021

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This opinion is uncorrected and will not be published in the printed Official Reports.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 February 5, 2021

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

PRESENT: : MICHELLE WESTON, J.P., DAVID ELLIOT, WAVNY TOUSSAINT, JJ
2019-895 K C

BNE Clinton Medical, P.C., as Assignee of Diana Cruz, Appellant,
against
State Farm Mutual Auto Ins. Co., Respondent.

Kopelevich & Feldsherova, P.C. (David Landfair of counsel), for appellant. Rivkin Radler, LLP (Stuart M. Bodoff of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), dated May 3, 2019. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion to disqualify defendant’s law firm from representing defendant in this action.

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs). The motion was supported by, among other things, an affirmation from a partner in the law firm representing defendant, attesting to plaintiff’s failure to appear. Plaintiff cross-moved to disqualify the law firm representing defendant, pursuant to Rules of Professional Conduct (22 NYCRR 1200.0) rule 3.7, on the ground that a member of the firm was a necessary witness in this case. Plaintiff appeals from an order of the Civil Court granting defendant’s motion and denying plaintiff’s cross motion.

Plaintiff’s contention that defendant failed to make a prima facie showing of its entitlement to summary judgment because defendant did not show that it had timely mailed “prescribed forms” upon learning of the accident (see 11 NYCRR 65-3.4) lacks merit, as such a showing is not part of an insurer’s prima facie burden when seeking summary judgment on the ground that a provider or the provider’s assignor failed to appear for duly scheduled EUOs (see Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2014]).

Plaintiff’s contention that defendant’s law firm should be disqualified based on the attorney-witness rule lacks merit for the reasons stated in Lotus Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (44 Misc 3d 142[A], 2014 NY Slip Op 51315[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]).

Accordingly, the order is affirmed.

WESTON, J.P., ELLIOT and TOUSSAINT, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: February 5, 2021

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.

No-show defense: insurer's proof

Open the full map

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 insurer made its prima facie no-show showing without proving it mailed prescribed forms on learning of the accident, because that is not an element of the EUO no-show defense.

Defense provedMailing not provedNonappearance not provedRequests not compliantTriable issueNo-show excusedThis decisionCites it or cited by itCited or followed

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

A label shows how this decision treated the case it cites.

Interboro Ins. Co. v Clennon (2014 NY Slip Op 00092) FollowedThe assignor's two EUO nonappearances supported a declaration that the providers were not entitled to no-fault benefits.
Lotus Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2014 NY Slip Op 51315(U)) FollowedThe insurer proved timely EUO notices and denial and the provider's nonappearance, rendering the request to disqualify counsel moot.

Cited by

A label shows how the later decision treated this one.

Parisien v Travelers Ins. Co. (2021 NY Slip Op 50396(U)) FollowedThe provider's requests for lengthy EUO adjournments failed to raise a triable issue concerning the two nonappearances.

Similar decisions

Oleg’s Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2019 NY Slip Op 50760(U))A different contact in an EUO letter does not undermine an otherwise sufficient affirmation of nonappearance by an attorney at the same firm.
LMS Acupuncture, P.C. v State Farm Mut. Automotive Ins. Co. (2019 NY Slip Op 50696(U))An insurer need not state objective reasons for requesting EUOs to obtain summary judgment based on a provider's nonappearance.
Island Life Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co. (2018 NY Slip Op 51552(U))The insurer's transfer of claims between its offices did not raise a triable issue defeating summary judgment for EUO nonappearance.
Bronx Chiropractic Care, P.C. v State Farm Ins. (2019 NY Slip Op 50700(U))An insurer need not state objective reasons for requesting EUOs to establish entitlement to summary judgment based on nonappearance.
LMS Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2018 NY Slip Op 51655(U))An insurer need not state objective reasons for requesting EUOs to establish prima facie entitlement to summary judgment for nonappearance.