November 9, 2018

Island Life Chiropractic Pain Care, PLLC v State Farm Mut. Auto. Ins. Co. (2018 NY Slip Op 51594(U))

Headnote

The court considered a provider's attempt to recover assigned first-party no-fault benefits from an insurance company. The main issue at hand was whether the insurance company's motion for summary judgment, which was granted, dismissing the provider's complaint on the grounds of the provider's failure to appear for duly scheduled examinations under oath (EUOs), was appropriate. The court held that the insurer had provided sufficient proof demonstrating the provider's failure to appear for the EUOs, and that the insurer was not required to provide objective reasons for requesting the EUOs in order to establish its entitlement to summary judgment. As a result, the court affirmed the order granting the insurer's motion for summary judgment dismissing the complaint.

Reported in New York Official Reports at Island Life Chiropractic Pain Care, PLLC v State Farm Mut. Auto. Ins. Co. (2018 NY Slip Op 51594(U))

Island Life Chiropractic Pain Care, PLLC v State Farm Mut. Auto. Ins. Co. (2018 NY Slip Op 51594(U)) [*1]

Island Life Chiropractic Pain Care, PLLC v State Farm Mut. Auto. Ins. Co.

2018 NY Slip Op 51594(U) [61 Misc 3d 139(A)]

Decided on November 9, 2018

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This opinion is uncorrected and will not be published in the printed Official Reports.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 November 9, 2018

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

PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2016-435 K C

Island Life Chiropractic Pain Care, PLLC, as Assignee of Cooper, Kadeem, Appellant,
against
State Farm Mutual Automobile Ins. Co., Respondent.

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Theresa M. Ciccotto, J.), entered January 27, 2016. 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 proof submitted by defendant in support of its motion was sufficient to demonstrate that plaintiff had failed to appear for the EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Furthermore, defendant was not required to set forth objective reasons for requesting the EUOs in order to establish its prima facie entitlement to summary judgment, as an insurer need only demonstrate “as a matter of law that it twice duly demanded an [EUO] from the [provider] . . . that the [provider] twice failed to appear, and that the [insurer] issued a timely denial of the claim[]” (Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2014]; see Parisien v Metlife Auto & Home, 54 Misc 3d 143[A], 2017 NY Slip Op 50208[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; Palafox PT, P.C. v State Farm Mut. Auto. Ins. Co., 49 Misc 3d 144[A], 2015 NY Slip Op 51653[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). As [*2]plaintiff’s remaining contentions lack merit, plaintiff has not provided any basis to disturb the Civil Court’s order.

Accordingly, the order is affirmed.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 09, 2018