March 1, 2019

Oleg’s Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2019 NY Slip Op 51047(U))

https://www.beynensonlaw.com/case-law/olegs-acupuncture-p-c-v-state-farm-mut-auto-ins-co-2019-ny-slip-op51047u/

Court
Appellate Term, Second Department
Decided
March 1, 2019
Citation
2019 NY Slip Op 51047(U) · 64 Misc 3d 131(A)
Posture
Summary judgment
Outcome
Insurer prevailed
Issues
EUO no-show
Cite as
Oleg's Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 64 Misc 3d 131(A), 2019 NY Slip Op 51047(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019)

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.

The insurer's motion for summary judgment dismissing the complaint based on the provider's EUO nonappearance was granted on appeal. The Appellate Term, Second Department, reversed the order, insofar as appealed from, for the reasons stated in the companion appeal decided the same day, No. 2016-2048 K C.

Reported in New York Official Reports at Oleg’s Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2019 NY Slip Op 51047(U))

[*1]
Oleg’s Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co.
2019 NY Slip Op 51047(U) [64 Misc 3d 131(A)]
Decided on March 1, 2019
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This opinion is uncorrected and will not be published in the printed Official Reports.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 March 1, 2019

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


PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, BERNICE D. SIEGAL, JJ
2016-2130 K C
Oleg’s Acupuncture, P.C., as Assignee of Carl Jones, Respondent,

against

State Farm Mutual Automobile Ins. Co., Appellant.

Rivkin Radler, LLP (Stuart M. Bodoff and Cheryl F. Korman of counsel), for appellant. Gary Tsirelman, P.C. (Douglas Mace of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered June 10, 2016. The order, insofar as appealed from, 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 moved for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs). By order entered June 10, 2016, the Civil Court denied the motion, but found, in effect pursuant to CPLR 3212 (g), that defendant had established the timely and proper mailing of the EUO scheduling letters and denial of claim forms, as well as plaintiff’s failure to appear for the EUOs. The Civil Court further found that the only remaining issues for trial were plaintiff’s prima facie case and “an issue of fact regarding the discrepancy between the person stated to be the contact for defense counsel and the person signing the affirmation regarding plaintiff’s failure to appear.” Defendant appeals, contending that it was entitled to summary judgment dismissing the complaint.

For the reasons stated in Oleg’s Acupuncture P.C., as Assignee of Kevin Adams v State Farm Mut. Auto. Ins. Co. (___ Misc 3d ___, 2019 NY Slip Op _____ [appeal No. 2016-2048 K C], decided herewith), the order, insofar as appealed from, is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.

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


ENTER:
Paul Kenny
Chief Clerk
Decision Date: March 01, 2019

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