December 15, 2017
Stracar Med. Servs., P.C. v State Farm Mut. Auto. Ins. Co. (2017 NY Slip Op 51753(U))
https://www.beynensonlaw.com/case-law/stracar-med-servs-p-c-v-state-farm-mut-auto-ins-co-2017-ny-slip-op51753u/
- Decided
- December 15, 2017
- Citation
- 2017 NY Slip Op 51753(U) · 58 Misc 3d 130(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 Stracar Med. Servs., P.C. v State Farm Mut. Auto. Ins. Co. (2017 NY Slip Op 51753(U))
| Stracar Med. Servs., P.C. v State Farm Mut. Auto. Ins. Co. |
| 2017 NY Slip Op 51753(U) [58 Misc 3d 130(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| This opinion is uncorrected and will not be published in the printed Official Reports.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
2014-748 K C
against
State Farm Mutual Automobile Ins. Co., Respondent.
Gary Tsirelman, P.C. (Irena Golodkeyer, 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 (Dawn Jimenez Salta, J.), entered September 14, 2012. 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 her 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]). Plaintiff’s remaining contentions either lack merit or are improperly raised for the first time on appeal.
Accordingly, the order is affirmed.
PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 15, 2017k
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 insurer's attorney, who was present in her office to conduct the EUOs on the scheduled dates, sufficient to establish the provider's nonappearance, affirming summary judgment for the insurer.
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
- Stracar Med. Servs. v State Farm Mut. Auto. Ins. Co. (2016 NY Slip Op 51415(U))The provider could not challenge the reasonableness of EUO requests after failing to allege or prove any response to them.
- 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.
- Stracar Med. Servs. v New York Cent. Mut. Ins. Co. (2014 NY Slip Op 50263(U))An assignor's failure to attend requested IMEs permits retroactive denial of all claims to the loss date regardless of denial timeliness.
- All Boro Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co. (2014 NY Slip Op 51787(U))The insurer's affidavits established timely mailing of EUO notices and denials and the provider's failure to appear.
- 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.