December 15, 2017
Charles Deng Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2017 NY Slip Op 51764(U))
https://www.beynensonlaw.com/case-law/charles-deng-acupuncture-p-c-v-state-farm-mut-auto-ins-co-2017-ny-slip-op51764u/
- Decided
- December 15, 2017
- Citation
- 2017 NY Slip Op 51764(U) · 58 Misc 3d 131(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 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) [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| This opinion is uncorrected and will not be published in the printed Official Reports.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
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
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 to conduct the EUOs proved the nonappearance, and the owner's claimed rescheduling call raised no triable issue because it went to a different person and number than the letter listed.
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.
- 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.
Similar decisions
- Acupuncture Healthcare Plaza I, P.C. v State Farm Mut. Auto. Ins. Co. (2018 NY Slip Op 50738(U))The insurer's cross motion for summary judgment dismissing the provider's complaint for EUO nonappearance was granted.
- Charles Deng Acupuncture, P.C. v Allstate Ins. Co. (2017 NY Slip Op 51451(U))The insurer's affidavits failed to establish timely mailing, and the provider's affidavit failed to establish its prima facie case.
- Charles Deng Acupuncture, P.C. v ELRAC, Inc. (2018 NY Slip Op 50774(U))The insurer's summary judgment dismissing the provider's claims for EUO nonappearance was affirmed on appeal.
- LMS Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2017 NY Slip Op 51137(U))The insurer established timely EUO notices and denials, the provider's nonappearance, and entitlement to dismissal without a triable factual issue.
- Charles Deng Acupuncture, P.C. v Unitrin Auto & Home Ins. Co. (2017 NY Slip Op 51834(U))The insurer's affidavit established timely mailing of the IME scheduling letters challenged by the provider.