November 9, 2018
Pugsley Chiropractic, PLLC v State Farm Mut. Auto. Ins. Co. (2018 NY Slip Op 51603(U))
https://www.beynensonlaw.com/case-law/pugsley-chiropractic-pllc-v-state-farm-mut-auto-ins-co-2018-ny-slip-op51603u/
- Decided
- November 9, 2018
- Citation
- 2018 NY Slip Op 51603(U) · 61 Misc 3d 140(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 Pugsley Chiropractic, PLLC v State Farm Mut. Auto. Ins. Co. (2018 NY Slip Op 51603(U))
| Pugsley Chiropractic, PLLC v State Farm Mut. Auto. Ins. Co. |
| 2018 NY Slip Op 51603(U) [61 Misc 3d 140(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| This opinion is uncorrected and will not be published in the printed Official Reports.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
2016-1453 K C
against
State Farm Mutual Automobile Ins. Co., Respondent.
Gary Tsirelman, P.C. (Darya Klein of counsel), for appellant. Bruno, Gerbino & Soriano, LLP (Nathan Shapiro of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered March 8, 2016. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.
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), and denied plaintiff’s cross motion for summary judgment.
Contrary to plaintiff’s contention, defendant sufficiently established plaintiff’s failure to appear for two scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; T & J Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co., 47 Misc 3d 130[A], 2015 NY Slip Op 50406[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).
To the extent defendant seeks to have this appeal dismissed as untimely based upon dehors-the-record allegations included in an appellate appendix, we decline to review its argument. Defendant’s remedy was to make a motion for that relief.
Accordingly, the order is affirmed.
PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 09, 2018
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 insurer sufficiently established the provider's failure to appear for two scheduled EUOs, so dismissal was affirmed.
Of the 858 decisions on this question in the Second Department courts and the Court of Appeals, 527 (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.
- T & J Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co. (2015 NY Slip Op 50406(U)) FollowedThe provider's objections to the EUO requests were not heard because it did not claim to have responded to those requests.
Similar decisions
- Bronx Chiropractic Care, P.C. v State Farm Ins. (2019 NY Slip Op 50700(U))An insurer need not state objective reasons for requesting EUOs to establish entitlement to summary judgment based on nonappearance.
- Flatbush Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co. (2017 NY Slip Op 51494(U))The insurer's attorney's affirmation established the provider's failure to appear for scheduled EUOs. In this assigned no-fault benefits action, the provider's sole appellate contention challenged the sufficiency of the insurer's proof of nonappearance.
- Actual Chiropractic, P.C. v State Farm Ins. (2019 NY Slip Op 51552(U))An insurer need not set forth objective reasons for requesting EUOs to obtain summary judgment based on a provider's nonappearances.
- Restoration Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co. (2017 NY Slip Op 51489(U))The insurer's summary judgment motion dismissing the provider's claims for failure to appear for EUOs was granted.
- Kings County Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co. (2016 NY Slip Op 51446(U))The insurer failed to prove the provider's EUO nonappearance through someone with personal knowledge.