September 27, 2016

Stracar Med. Servs. v State Farm Mut. Auto. Ins. Co. (2016 NY Slip Op 51415(U))

https://www.beynensonlaw.com/case-law/stracar-med-servs-v-state-farm-mut-auto-ins-co-2016-ny-slip-op51415u/

Court: Appellate Term, Second Department
Decided: September 27, 2016
Citation: 2016 NY Slip Op 51415(U)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: EUO no-show Discovery and procedure
Legal questions: No-show defense: insurer's proof (see the maps)

Cite as

Stracar Med. Servs. v State Farm Mut. Auto. Ins. Co., 2016 NY Slip Op 51415(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016)

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 provider could not challenge the reasonableness of EUO requests after failing to allege or prove any response to them. The insurer established the provider's failure to attend two duly scheduled EUOs and obtained summary judgment dismissing the complaint. The provider argued that the motion was premature because it needed discovery concerning the propriety of the EUO demands. Because the provider had not responded to the requests, it could not raise objections to their reasonableness in litigation. Discovery on that subject was therefore unnecessary to oppose the motion under CPLR 3212 (f). The Appellate Term, Second Department, affirmed the order granting the insurer summary judgment.

Reported in New York Official Reports at Stracar Med. Servs. v State Farm Mut. Auto. Ins. Co. (2016 NY Slip Op 51415(U))

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

Stracar Medical Services, as Assignee of FREDDIE M. VELEZ, 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 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. Defendant’s motion was based on plaintiff’s failure to appear for duly scheduled examinations under oath (EUOs).

Contrary to plaintiff’s contention, defendant sufficiently established plaintiff’s failure to appear for the two duly scheduled EUOs (see e.g. 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]; Natural Therapy Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 44 Misc 3d 141[A], 2014 NY Slip Op 51310[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]).

Plaintiff further argues that defendant’s motion was premature, in that plaintiff was entitled to discovery regarding the propriety of defendant’s EUO demands. However, plaintiff failed to allege, much less prove, that it had responded in any way to the EUO requests at issue, and therefore it cannot raise any objection to the reasonableness of those requests in litigation (see e.g. T & J Chiropractic, P.C., 47 Misc 3d 130[A], 2015 NY Slip Op 50406[U]; Metro Health Prods., Inc. v State Farm Mut. Auto. Ins. Co., 47 Misc 3d 127[A], 2015 NY Slip Op 50402[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Consequently, discovery relevant to the reasonableness of the EUO requests was not necessary for plaintiff to oppose defendant’s motion (see CPLR 3212 [f]; Interboro Ins. Co. v Clennon, 113 AD3d 596 [2014]; 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]; T & J Chiropractic, P.C., 47 Misc 3d 130[A], 2015 NY Slip Op 50406[U]; Metro Health Prods., Inc., 47 Misc 3d 127[A], 2015 NY Slip Op 50402[U]).

Accordingly, the order is affirmed.

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Decision Date: September 27, 2016

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.

No-show defense: insurer's proof

Open the full map

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 proved the provider's failure to appear for two EUOs, and that the provider, having never responded to the requests, could not challenge their reasonableness or need discovery on it.

Defense provedMailing not provedNonappearance not provedRequests not compliantTriable issueNo-show excusedThis decisionCites it or cited by itCited or followed

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.

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.
Natural Therapy Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2014 NY Slip Op 51310(U))The provider's unanswered EUO requests foreclosed its reasonableness objections and made related discovery unnecessary to oppose summary judgment.
Metro Health Prods., Inc. v State Farm Mut. Auto. Ins. Co. (2015 NY Slip Op 50402(U)) FollowedThe provider could not pursue objections to EUO requests it had not answered, and reasonableness discovery was unnecessary to oppose dismissal.
Interboro Ins. Co. v Clennon (2014 NY Slip Op 00092) FollowedThe assignor's two EUO nonappearances supported a declaration that the providers were not entitled to no-fault benefits.
Palafox PT, P.C. v State Farm Mut. Auto. Ins. Co. (2015 NY Slip Op 51653(U)) FollowedThe provider failed to identify discovery that could raise a triable issue concerning the insurer's EUO nonappearance defense.

Cited by

NY Wellness Med. P.C. v Ameriprise Ins. Co. (2021 NY Slip Op 50382(U))The insurer's delay notices referring only to the assignor's EUO failed to toll the payment period for three provider bills.

Similar decisions

Stracar Med. Servs., P.C. v State Farm Mut. Auto. Ins. Co. (2017 NY Slip Op 51753(U))The insurer's attorney affirmation established the provider's failure to appear for scheduled EUOs. In this action to recover assigned first-party no-fault benefits, the provider challenged summary judgment dismissing its complaint.
Flatbush Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co. (2013 NY Slip Op 51880(U))The provider's failure to respond to EUO requests foreclosed its objections and made discovery on their reasonableness unnecessary.
Flatlands Med., P.C. v State Farm Mut. Auto. Ins. Co. (2013 NY Slip Op 50763(U))The provider's objections to the insurer's EUO requests were not heard because it had not responded to the requests.
Professional Health Imaging, P.C. v State Farm Mut. Auto. Ins. Co. (2016 NY Slip Op 50698(U))The provider could not challenge the reasons for EUO requests in litigation after failing to object during claims processing.
LMS Acupuncture, P.C. v State Farm Mut. Automotive Ins. Co. (2019 NY Slip Op 50696(U))An insurer need not state objective reasons for requesting EUOs to obtain summary judgment based on a provider's nonappearance.