October 29, 2013

Flatbush Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co. (2013 NY Slip Op 51880(U))

Headnote

The court considered whether the defendant's motion for summary judgment dismissing the complaint was justified. The main issue was whether the plaintiff had failed to comply with a condition precedent to coverage by failing to appear for scheduled examinations under oath (EUOs). The court held that the defendant had established through affidavits that the EUO scheduling letters and denial of claim forms had been timely mailed. Additionally, since the plaintiff did not respond in any way to the EUO requests, their objections regarding the requests were not heard. Therefore, the court affirmed the order granting the defendant's motion for summary judgment dismissing the complaint.

Reported in New York Official Reports at Flatbush Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co. (2013 NY Slip Op 51880(U))

Flatbush Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co. (2013 NY Slip Op 51880(U)) [*1]

Flatbush Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co.

2013 NY Slip Op 51880(U) [41 Misc 3d 135(A)]

Decided on October 29, 2013

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This opinion is uncorrected and will not be published in the printed Official Reports.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 October 29, 2013

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ
.

Flatbush Chiropractic, P.C. as Assignee of AVISELA MARTINEZ, Appellant, —
against
State Farm Mutual Automobile Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Dawn Jimenez Salta, J.), entered September 29, 2011. 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. The Civil Court found that defendant had timely and properly denied the claims at issue on the ground that plaintiff had failed to comply with a condition precedent to coverage in that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs). On appeal, plaintiff argues that defendant failed to prove that it had mailed its EUO scheduling letters and denial of claim forms, that defendant lacked justification for its EUO requests, and that defendant’s motion should have been denied pursuant to CPLR 3212 (f), as plaintiff had not received discovery regarding the reasonableness of defendant’s EUO requests.

Contrary to plaintiff’s argument, the affidavits submitted by defendant established that the EUO scheduling letters and the denial of claim forms had been timely mailed in accordance with its standard office practices and procedures (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Furthermore, since plaintiff does not claim to have responded in any way to the EUO requests, its objections regarding the EUO requests will not now be heard (see Viviane Etienne Med. Care, P.C. v State Farm Mut. Auto. Ins. Co., 35 Misc 3d 127[A], 2012 NY Slip Op 50579[U] [App Term, 2d, 11th & 13th Jud Dists 2012]; Crescent Radiology, PLLC v American Tr. Ins. Co., 31 Misc 3d 134[A], 2011 NY Slip Op 50622[U] [App Term, 9th & 10th Jud Dists 2011]). Consequently, discovery relevant to the reasonableness of the EUO requests was not necessary for plaintiff to oppose defendant’s motion (see CPLR 3212 [f]).

Accordingly, the order is affirmed. [*2]

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: October 29, 2013