December 15, 2017

Charles Deng Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2017 NY Slip Op 51764(U))

Headnote

The court considered the fact that the plaintiff, Charles Deng Acupuncture, P.C., was seeking to recover assigned first-party no-fault benefits from State Farm Mutual Automobile Ins. Co. The main issue decided was whether the plaintiff had failed to appear for duly scheduled examinations under oath (EUOs) as required by the insurance company. The court held that the affirmation submitted by defendant's attorney was sufficient to establish that the plaintiff had indeed failed to appear for the EUOs. The court also found that the plaintiff's attempt to reschedule the EUOs was not valid, as the person called and the phone number used did not match the information provided by the insurance company's EUO scheduling letter. Therefore, the court affirmed the order granting defendant's motion for summary judgment dismissing the complaint.

Reported in New York Official Reports at Charles Deng Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2017 NY Slip Op 51764(U))

Charles Deng Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2017 NY Slip Op 51764(U)) [*1]
Charles Deng Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co.
2017 NY Slip Op 51764(U) [58 Misc 3d 131(A)]
Decided on December 15, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 December 15, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2014-2167 K C

Charles Deng Acupuncture, P.C., as Assignee of Etienne, Olive, Appellant,

against

State Farm Mutual Automobile Ins. Co., Respondent.

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Rivkin Radler, LLP (Stuart M. Bodoff, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Carol Ruth Feinman, J.), entered July 10, 2014. The order granted defendant’s motion for summary judgment dismissing the complaint.

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 of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs).

Contrary to plaintiff’s contention, the affirmation submitted by defendant’s attorney, who was present in his office to conduct plaintiff’s EUO on the scheduled dates, was sufficient to establish that plaintiff had failed to appear for the EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). While plaintiff’s owner asserts that, upon receiving the EUO scheduling letters, he called defendant’s investigator and left a message asking to reschedule the EUOs, plaintiff nevertheless failed to raise a triable issue of fact, since the person plaintiff’s owner allegedly called was not the investigator identified in defendant’s EUO scheduling letter as the person to be called in case of any issue, and the phone number allegedly called was not the same as the phone number set forth in defendant’s EUO scheduling letter.

Accordingly, the order is affirmed.

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


ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 15, 2017