May 10, 2019

Oleg’s Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2019 NY Slip Op 50761(U))

https://www.beynensonlaw.com/case-law/olegs-acupuncture-p-c-v-state-farm-mut-auto-ins-co-2019-ny-slip-op50761u/

Court
Appellate Term, Second Department
Decided
May 10, 2019
Citation
2019 NY Slip Op 50761(U) · 63 Misc 3d 152(A)
Posture
Summary judgment
Outcome
Insurer prevailed
Issues
EUO no-show
Cite as
Oleg's Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 63 Misc 3d 152(A), 2019 NY Slip Op 50761(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019)

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.

The insurer's motion for summary judgment based on the provider's failure to appear for EUOs was granted on appeal. The Civil Court, Kings County, had left for trial a discrepancy between the person named in the EUO letters and the person affirming nonappearance. The Appellate Term, Second Department, reversed the order, insofar as appealed from, for the reasons stated in companion appeal No. 2017-575 K C, decided the same day.

Reported in New York Official Reports at Oleg’s Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2019 NY Slip Op 50761(U))

[*1]
Oleg’s Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co.
2019 NY Slip Op 50761(U) [63 Misc 3d 152(A)]
Decided on May 10, 2019
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This opinion is uncorrected and will not be published in the printed Official Reports.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 May 10, 2019

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


PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2017-582 K C
Oleg’s Acupuncture, P.C., as Assignee of Anthony Hamer, Respondent,

against

State Farm Mutual Automobile Ins. Co., Appellant.

Rivkin Radler, LLP (Stuart M. Bodoff of counsel), for appellant. Gary Tsirelman, P.C. (Stefan Belinfanti of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Devin P. Cohen, J.), entered May 31, 2016. The order, insofar as appealed from, denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs). By order entered May 31, 2016, the Civil Court denied the motion, but found, in effect pursuant to CPLR 3212 (g), that defendant had established the timely and proper mailing of the EUO scheduling letters and denial of claim forms, as well as plaintiff’s failure to appear for the EUOs. The Civil Court further found that the only remaining issues for trial were plaintiff’s prima facie case and whether plaintiff failed to appear for the EUOs “due to a discrepancy as to the person stated in the EUO request letters to report to at the EUO, and the person signing the affirmation alleging he was assigned and stating that plaintiff failed to appear.” Defendant appeals, contending that it was entitled to summary judgment dismissing the complaint.

For the reasons stated in Oleg’s Acupuncture, P.C., as Assignee of Malaysia Mullervy v State Farm Mut. Auto. Ins. Co. (___ Misc 3d ___, 2019 NY Slip Op _____ [appeal No. 2017-575 K C], decided herewith), the order, insofar as appealed from, is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.


PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: May 10, 2019

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