February 27, 2017
A.O.T. Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co. (2017 NY Slip Op 50288(U))
https://www.beynensonlaw.com/case-law/a-o-t-chiropractic-p-c-v-state-farm-mut-auto-ins-co-2017-ny-slip-op50288u/
- Decided
- February 27, 2017
- Citation
- 2017 NY Slip Op 50288(U) · 54 Misc 3d 145(A)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
- 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 A.O.T. Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co. (2017 NY Slip Op 50288(U))
| A.O.T. Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co. |
| 2017 NY Slip Op 50288(U) [54 Misc 3d 145(A)] |
| Decided on February 27, 2017 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 27, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : MARANO, P.J., GARGUILO and BRANDS, JJ.
2015-597 S C
against
State Farm Mutual Automobile Ins. Co., Respondent.
Appeal from an order of the District Court of Suffolk County, Third District
(C. Stephen Hackeling, J.), dated February 19, 2015. The order granted defendant’s motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, without costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the District Court which granted defendant’s motion for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear at duly scheduled examinations under oath (EUOs).
Plaintiff’s sole argument on appeal is that defendant failed to prove plaintiff’s nonappearances. An appearance at an EUO is a condition precedent to an insurer’s liability on a policy (see 11 NYCRR 65-1.1; Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). In support of its motion for summary judgment, defendant submitted an affirmation from the attorney who had been responsible for conducting the EUOs at issue. The affirmation established, based on the attorney’s personal knowledge, that plaintiff had failed to appear for either of the duly scheduled EUOs (see Stephen Fogel Psychological, P.C., 35 AD3d at 722; Olmeur Med., P.C. v Nationwide Gen. Ins. Co., 41 Misc 3d 143[A], 2013 NY Slip Op 52031[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]).
Accordingly, the order is affirmed.
Marano, P.J., Garguilo and Brands, JJ., concur.
Decision Date: February 27, 2017
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 insurer proved the provider's nonappearance at both scheduled EUOs through an affirmation of the attorney who was responsible for conducting the EUOs, based on personal knowledge.
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.
- Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. (2006 NY Slip Op 09604) FollowedAn insurer may deny benefits retroactively to the date of loss for failure to attend reasonably required IMEs under 11 NYCRR 65-1.1.
- Olmeur Med., P.C. v Nationwide Gen. Ins. Co. (2013 NY Slip Op 52031(U))The insurer cured a defective conformity certificate in reply and proved the assignor's EUO nonappearances with admissible evidence.
Similar decisions
- 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.
- 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 50700(U))An insurer need not state objective reasons for requesting EUOs to establish entitlement to summary judgment based on nonappearance.
- Actual Chiropractic, P.C. v State Farm Ins. (2019 NY Slip Op 51552(U))An insurer need not set forth objective reasons for requesting EUOs to obtain summary judgment based on a provider's nonappearances.
- Kings County Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co. (2016 NY Slip Op 51446(U))The insurer failed to prove the provider's EUO nonappearance through someone with personal knowledge.