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

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered June 21, 2012. The order granted defendant’s motion to dismiss 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, defendant moved to dismiss the complaint, pursuant to CPLR 3211 (a) (8), on the ground that the court lacked personal jurisdiction over defendant. In an affidavit in support of the motion, defendant’s litigation specialist asserted that defendant is a Georgia-based corporation, which is not authorized to conduct business in New York State, does not issue or deliver contracts of insurance to New York State residents or to corporations authorized to do business in New York, does not solicit applications for contracts of insurance within New York State, does not have a power of attorney on file with the State of New York, has not filed a consent to service or declaration that its insurance policy be deemed in compliance with New York Vehicle and Traffic Law § 311 and does not control any New York State authorized company. In opposition to the motion, plaintiff’s attorney submitted an affirmation wherein he stated, in a conclusory manner, that defendant may have an agent which operates in New York and asserted that discovery is needed to determine that issue. By order entered June 21, 2012, the Civil Court granted defendant’s motion to dismiss the complaint.

Section 404 of the New York City Civil Court Act sets forth the basis for the Civil Court’s exercise of personal jurisdiction over nonresidents of the City of New York, such as defendant herein. Defendant’s motion papers demonstrated that it has done none of the acts enumerated in CCA 404 within the City of New York with respect to plaintiff’s cause of action, so as to bring it within the Civil Court’s long-arm jurisdiction. In its opposition papers, plaintiff failed to rebut defendant’s showing. Instead, plaintiff argued that discovery was necessary to determine whether there was proper jurisdiction. However, plaintiff failed to establish that facts essential to justify opposition may exist but are not available to it, thereby warranting discovery (see CPLR 3211 [d] Lang v Wycoff Hgts. Med. Ctr., 55 AD3d 793 [2008] Roldan v Dexter Folder Co., 178 AD2d 589 [1991] Viviane Etienne Med. Care, P.C. v United Auto. Ins. Co., 29 Misc 3d 141[A], 2010 NY Slip Op 52151[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). Consequently, defendant’s motion to dismiss the complaint was properly granted. [*2]

Accordingly, the order is affirmed.

Pesce, P.J., Weston and Solomon, JJ., concur.
Decision Date: February 28, 2014

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS

Appeal from an order of the District Court of Nassau County, First District (Andrea Phoenix, J.), dated June 4, 2012. The order, insofar as appealed from, upon reargument and renewal, adhered to a prior determination granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, without costs, and, upon reargument and renewal, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint on the ground that the action was premature since plaintiff had failed to provide requested documentary verification. By order dated February 29, 2012, the District Court granted plaintiff’s motion and denied defendant’s cross motion. Defendant appeals from so much of an order dated June 4, 2012 as, upon reargument and renewal, adhered to the prior determination.

Defendant established, through the affidavit of its no-fault litigation examiner, that it had first received plaintiff’s hospital claim form on May 9, 2011. Defendant further indicated that it had received copies of the same hospital bill on May 25 and July 18, 2011. Defendant also demonstrated that it had timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) initial and follow-up requests for verification to plaintiff (see Insurance Department Regulations [11 NYCRR] §§ 65-3.5 [b] 65-3.6 [b]) on May 29, 2011 and June 29, 2011, respectively, and that plaintiff had not responded to the verification requests. Plaintiff, which asserted that defendant had received the claim form on July 18, 2011, failed to rebut defendant’s showing of its receipt of an identical claim on May 9, 2011, or establish that it had responded to defendant’s verification requests. Contrary to plaintiff’s contention, the 30-day period in which to pay or deny a claim did not run anew as the result of plaintiff’s resubmission of the claim (see New York & Presbyt. Hosp. v AIU Ins. Co., 20 AD3d 515, 516 [2005] Hospital for Joint Diseases v Allstate Ins. Co., 5 AD3d 441, 442 [2004]). Consequently, the District Court should have dismissed the complaint as premature (see Insurance Department Regulations [11 NYCRR] § 65-3.8 [a] Hospital for Joint Diseases v New York Cent. Mut. Fire Ins. Co., 44 AD3d 903 [2007] Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 [*2]AD3d 492 [2005] Hospital for Joint Diseases v State Farm Mut. Auto. Ins. Co., 8 AD3d 533 [2004]).

Accordingly, the order, insofar as appealed from, is reversed, and, upon reargument and renewal, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted.

Nicolai, P.J., Iannacci and Marano, JJ., concur.
Decision Date: February 28, 2014

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS

Appeal from an order of the District Court of Nassau County, First District (Andrea Phoenix, J.), dated June 4, 2012. The order denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the District Court which denied defendant’s motion for summary judgment dismissing the complaint.

Defendant established that it had timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008] Richard Morgan Do, P.C. v State Farm Mut. Auto. Ins. Co., 22 Misc 3d 134[A], 2009 NY Slip Op 50242[U] [App Term, 9th & 10th Jud Dists 2009]) its denial of claim forms, which denied plaintiff’s claims on the ground of lack of medical necessity. The sworn peer review report of defendant’s chiropractor set forth a factual basis and medical rationale for the chiropractor’s determination that there was a lack of medical necessity for the services provided to plaintiff’s assignor (see Dynamic Med. Imaging, P.C. v New York Cent. Mut. Fire Ins. Co., 29 Misc 3d 139[A], 2010 NY Slip Op 52062[U] [App Term, 9th & 10th Jud Dists 2010]). Consequently, defendant established its prima facie entitlement to summary judgment (see Elmont Open MRI & Diagnostic Radiology, P.C. v State Farm Ins. Co., 27 Misc 3d 136[A], 2010 NY Slip Op 50829[U] [App Term, 9th & 10th Jud Dists 2010]). However, in opposition to defendant’s motion, plaintiff submitted a sworn letter of medical necessity by its treating chiropractor which sufficiently demonstrated the existence of a question of fact as to medical necessity (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Accordingly, the order is affirmed.

Nicolai, P.J., Iannacci and Marano, JJ., concur.
Decision Date: February 28, 2014

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

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Dawn Jimenez Salta, J.), entered March 9, 2012. The judgment, after a nonjury trial, dismissed the complaint.

ORDERED that the judgment is reversed, with $30 costs, and the matter is remitted to the Civil Court for the entry of a judgment in favor of plaintiff in the principal sum of $918.75, plus statutory interest and attorney’s fees.

In this action by a provider to recover assigned first-party no-fault benefits, a nonjury trial was held, at which plaintiff’s witness was the sole witness. Plaintiff attempted to move into evidence certain documents, including an NF-10 denial of claim
form and a mailing log. The court, however, refused to admit those documents and, after trial, dismissed the complaint on the ground that plaintiff had failed to establish a prima facie case.

Plaintiff sufficiently established that the NF-10 denial of claim form that it was trying to introduce into evidence was the denial of claim form that it had received from defendant, which referenced the claim form at issue in this action. Contrary to the ruling of the Civil Court, plaintiff should have been allowed to use that denial to demonstrate that the claim form in question had been submitted to defendant (see East Acupuncture, P.C. v Electric Ins. Co., 16 Misc 3d 128[A], 2007 NY Slip Op 51281[U] [App Term, 2d & 11th Jud Dists 2007] Oleg Barshay, D.C., P.C. v State Farm Ins. Co., 14 Misc 3d 74 [App Term, 2d & 11th Jud Dists 2006]). In such a case, a plaintiff is not trying to use the denial as the plaintiff’s own business record pursuant to CPLR 4518 (a); instead, in this context, the denial is being used as an admission by the defendant that the claim form had been received. Consequently, plaintiff’s attempt to use the denial to prove the submission of the claim form was improperly denied. As plaintiff proved that defendant had not paid the claim and as defendant consented to the admission into evidence of plaintiff’s claim form, judgment should have been awarded to plaintiff.

Accordingly, the matter is remitted to the Civil Court for the entry of judgment in favor of plaintiff in the principal sum of $918.75, plus statutory interest and attorney’s fees due pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

Pesce, P.J., Weston and Solomon, JJ., concur.
Decision Date: February 28, 2014

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered December 20, 2011. The order held in abeyance plaintiff’s motion for summary judgment and defendant’s motion for summary judgment dismissing the complaint, pending an application to the Workers’ Compensation Board to determine the parties’ rights under the Workers’ Compensation Law.

ORDERED that the order is affirmed, with $25 costs

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, and defendant moved for summary judgment dismissing the complaint based upon plaintiff’s assignor’s alleged eligibility for workers’ compensation benefits. The Civil Court held both motions in abeyance pending an application to the Workers’ Compensation Board to determine the parties’ rights under the Workers’ Compensation Law. Plaintiff appeals.

We agree with the Civil Court that defendant proffered sufficient evidence to support its contention that there was a triable issue as to whether plaintiff’s assignor had been acting in the course of his employment at the time of the accident and that, therefore, workers’ compensation benefits might be available (see e.g. Arce Med. & Diagnostic Svce v American Tr. Ins. Co., 39 Misc 3d 134[A], 2013 NY Slip Op 50531[U] [App Term, 2d, 11th & 13th Jud Dists 2013] Jamaica Med. Supply, Inc. v American Tr. Ins. Co., 34 Misc 3d 133[A], 2011 NY Slip Op 52371[U] [App Term, 2d, 11th & 13th Jud Dists 2011] D.A.V. Chiropractic, P.C. v American Tr. Ins. Co., 29 Misc 3d 128[A], 2010 NY Slip Op 51738[U] [App Term, 2d, 11th & 13th Jud Dists 2010] cf. Westchester Med. Ctr. v American Tr. Ins. Co., 60 AD3d 848 [2009]). This issue must be resolved in the first instance by the Workers’ Compensation Board (see O’Rourke v Long, 41 NY2d 219, 225 [1976] see also Dunn v American Tr. Ins. Co., 71 AD3d 629 [2010] Jamaica Med. Supply, Inc. v American Tr. Ins. Co., 34 Misc 3d 133[A], 2011 NY Slip Op 52371[U] D.A.V. Chiropractic, P.C. v American Tr. Ins. Co., 29 Misc 3d 128[A], 2010 NY Slip Op 51738[U]). We find that, in the circumstances, defendant’s failure to submit certificates of conformity was not a fatal error (see e.g. Gonzalez v Perkan Concrete Corp., 110 AD3d 955, 960 [2013] Mack-Cali Realty, L.P. v Everfoam Insulation Sys., Inc., 110 AD3d 680, 682 [2013] Matos v Salem Truck Leasing, 105 AD3d 916 [2013] Fredette v Town of Southampton, 95 AD3d 940, 942 [2012] Francis v Allain, 21 Misc 3d 142[A], 2008 NY Slip Op 52386[U] [App [*2]Term, 2d & 11th Jud Dists 2008]).

Accordingly, the order is affirmed.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: February 28, 2014

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

Defendant, as limited by its briefs, appeals from so much of an order of the Civil Court of the City of New York, New York County (James E. D’Auguste, J.), entered March 4, 2013, as denied, in part, its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (James E. D’Auguste, J.), entered March 4, 2013, insofar as appealed from, reversed, with $10 costs, and defendant’s motion for summary judgment dismissing the complaint is granted in toto. The Clerk is directed to enter judgment accordingly.

Defendant-insurer demonstrated its entitlement to summary judgment dismissing this action for first-party no-fault benefits by submitting the affidavit of its no-fault litigation examiner demonstrating that the notices scheduling the assignor’s independent medical examinations (IMEs) were timely and properly mailed, as well as the sworn affidavits of the scheduled examining physician and her employee that the assignor failed to appear at the scheduled IMEs (see American Tr. Ins. Co. v Lucas, 111 AD3d 423 [2013] American Tr. Ins. Co. v Solorzano, 108 AD3d 449 [2013]). In opposition, plaintiff did not specifically deny the assignor’s nonappearance or otherwise raise a triable issue with respect thereto, or as to the mailing or reasonableness of the underlying notices (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [2011], lv denied 17 NY3d 705 [2011]). “Accordingly, when [plaintiff’s] assignor[] failed to appear for the requested medical exams, [defendant] had the right to deny all claims retroactively to the date of loss, regardless of whether the denials were timely issued” (American Tr. Ins. Co. v Lucas, 111 AD3d at 424 [2013] see Unitrin at 560).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Decision Date: February 27, 2014

[*1]

Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts, February 14, 2014

APPEARANCES OF COUNSEL

The Rybak Firm, PLLC, Brooklyn (Damin J. Toell of counsel), for appellant. Conway, Farrell, Curtin & Kelly P.C., New York City (Jonathan T. Uejio of counsel), for respondent.

{**43 Misc 3d at 50} OPINION OF THE COURT

Memorandum.

Ordered that the order is affirmed, without costs.

Plaintiff commenced this action to recover assigned first-party no-fault benefits from an out-of-state insurer for medical services plaintiff had provided to its assignor as a result of injuries sustained in an automobile accident that occurred in New York. Plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint, contending, among other things, that it had not been properly served with process and that the court lacked jurisdiction over it. Plaintiff opposed the cross motion. The Civil Court denied the motion and cross motion. Thereafter, defendant moved for leave to renew and reargue its prior cross motion, contending, among other things, that an out-of-state affidavit by its corporate officer, which had been submitted in support of the cross motion for summary judgment, was in compliance with CPLR 2309 (c), and that the court should have considered the facts alleged therein, which established that the court lacked jurisdiction over defendant. Plaintiff opposed the motion, contending, among other things, that the affidavit was inadmissible and that, in any event, had it been considered, it would not have changed the court’s prior determination denying{**43 Misc 3d at 51} summary judgment to defendant. The Civil Court granted defendant’s motion for leave to renew and reargue, and, upon renewal and reargument, granted defendant’s cross motion for summary judgment dismissing the complaint, albeit on non-jurisdictional grounds.

At the outset, we note that, despite defendant’s failure to submit a proper certificate of conformity together with the out-of-state affidavit of its corporate officer, as required by CPLR 2309 (c), this omission was not a fatal error (see CPLR 2001; Gonzalez v Perkan Concrete Corp., 110 AD3d 955 [2013] Mack-Cali Realty, L.P. v Everfoam Insulation Sys., Inc., 110 AD3d 680 [2013] Fredette v Town of Southampton, 95 AD3d 940 [2012] Bay Med. P.C. v GEICO Ins. Co., 41 Misc 3d 145[A], 2013 NY Slip Op 52084[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]) and, therefore, the affidavit has been reviewed on this appeal. In view of the foregoing, we find that the Civil Court properly granted defendant leave to renew and reargue its motion for summary judgment.

Turning to the merits, we note that the record is devoid of any indication as to how or where service of process upon defendant was made. Nevertheless, defendant asserts that, however service was effectuated, there was no jurisdictional basis therefor since, as an out-of-state insurance company, jurisdiction could not have been obtained over it by virtue of service [*2]upon the New York State Superintendent of Insurance pursuant to Insurance Law § 1212 or § 1213.

In support of its cross motion, defendant demonstrated, prima facie, through documentary evidence, that it was not authorized to conduct an insurance business in New York and, as a result, jurisdiction could not be obtained over it pursuant to Insurance Law § 1212. Furthermore, defendant established, prima facie, through the affidavit of its corporate officer, that neither it nor its reciprocal insurers, affiliates, or subsidiaries provide, write, or sell insurance in the State of New York or to its residents. They do not provide goods or services within New York nor do they transact business in New York and they do not have any offices or agents in this state. Thus, defendant did not perform any of the acts specified in Insurance Law § 1213 (b) (1) in New York and, as a result, jurisdiction could not be obtained over it pursuant to Insurance Law § 1213 (see Farm Family Mut. Ins. Co. v Nass, 121 AD2d 498 [1986]).

As previously indicated, the record is devoid as to how or where service of process was made. We note that, for the same{**43 Misc 3d at 52} reasons that jurisdiction could not be obtained pursuant to Insurance Law § 1213, it could not be obtained under the long-arm statute (CCA 404), since the requirements of each statute are similar (see e.g. Chase Manhattan Bank v AXA Reins. UK, 300 AD2d 16 [2002] Cavaliere v New Jersey Ins. Underwriting Assn., 236 AD2d 502 [1997] American Ind. Ins. v Heights Chiropractic Care, P.C., 12 Misc 3d 228 [Sup Ct, NY County 2006]). This is especially true here, where defendant established through the affidavit of its corporate officer that there was no transaction of business in the State of New York, let alone New York City. We further note that the mere unilateral act of an automobile insurer’s insured of driving into New York State, without more, is insufficient to permit a New York court to exercise long-arm jurisdiction over the out-of-state insurer (see Matter of Eagle Ins. Co. v Gutierrez-Guzman, 21 AD3d 489 [2005] Franklin v Catawba Ins. Co., 291 AD2d 371 [2002] Matter of New York Cent. Mut. Ins. Co. v Johnson, 260 AD2d 638 [1999]).

The burden of proving jurisdiction is on the party asserting it and, in the face of defendant’s contentions raised in its cross motion, plaintiff was obligated to come forth with definitive evidentiary facts to support jurisdiction over the out-of-state insurer (see Bunkoff Gen. Contrs. v State Auto. Mut. Ins. Co., 296 AD2d 699 [2002] Spectra Prods. v Indian Riv. Citrus Specialties, 144 AD2d 832 [1988] Lamarr v Klein, 35 AD2d 248 [1970]); however, it failed to do so. Thus, jurisdiction was never acquired over defendant.

Plaintiff’s remaining contentions are found to be without merit. Accordingly, the order of the Civil Court is affirmed, albeit on grounds other than those stated by the Civil Court.

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

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Johnny Lee Baynes, J.), entered November 30, 2011. The order, insofar as appealed from as limited by the brief, denied, as untimely, defendant’s cross motion to dismiss the complaint pursuant to CPLR 3211 (a) (5).

ORDERED that the order, insofar as appealed from, is reversed, without costs, and the matter is remitted to the Civil Court for a determination of the merits of defendant’s cross motion to dismiss the complaint pursuant to CPLR 3211 (a) (5).

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals, as limited by its brief, from so much of an order as “rejected as untimely” defendant’s cross motion to dismiss the complaint pursuant to CPLR 3211 (a) (5). As it is undisputed by the parties that defendant’s cross motion was timely pursuant to a so-ordered stipulation setting forth the dates by which any cross motion had to be served, the Civil Court erred in failing to consider defendant’s cross motion.

Accordingly, the order, insofar as appealed from, is reversed, and the matter is remitted to the Civil Court for a determination of the merits of defendant’s cross motion to dismiss the complaint pursuant to CPLR 3211 (a) (5).

Aliotta, J.P., Pesce and Weston, JJ., concur.
Decision Date: February 11, 2014

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

Appeal from a judgment of the Civil Court of the City of New York, Richmond County (Orlando Marrazzo, Jr., J.), entered October 11, 2011. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $1,809.20.

ORDERED that the judgment is reversed, with $30 costs, and the matter is remitted to the Civil Court for the entry of judgment in favor of defendant dismissing the complaint.

In this action by a provider to recover assigned first-party no-fault benefits, the parties stipulated that the only issue for trial would be whether the medical devices provided to plaintiff’s assignor were medically necessary. After a nonjury trial, the Civil Court awarded judgment to plaintiff in the principal sum of $1,809.20. This appeal by defendant ensued.

At the trial, defendant’s doctor testified that, in his opinion, the cervical and lumbar traction units provided by plaintiff were not medically necessary, and he set forth a factual basis and medical rationale for his conclusion. Plaintiff called no witnesses to rebut defendant’s doctor’s testimony. In view of the foregoing and the Civil Court’s finding that defendant’s doctor’s testimony was “wholly credible,” we disagree with the Civil Court’s determination that defendant failed to establish that the medical devices at issue were not medically necessary.

Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for the entry of judgment in favor of defendant dismissing the complaint (see Cohen v Hallmark Cards, 45 NY2d 493 [1978] S.J. Pahng, M.D., P.C. v Progressive Northeastern Ins. Co., 20 Misc 3d 137[A], 2008 NY Slip Op 51537[U] [App Term, 2d & 11th Jud Dists 2008]).

Aliotta, J.P., Pesce and Solomon, JJ., concur.
Decision Date: February 07, 2014

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Carolyn E. Wade, J.), entered May 17, 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. The Civil Court found that defendant had timely and properly denied the claims at issue on the ground that plaintiff had failed to comply with a condition precedent to coverage in that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs). On appeal, plaintiff argues that defendant failed to prove that it had mailed its EUO scheduling letters and denial of claim forms, that defendant lacked justification for its EUO requests, and that defendant’s motion should have been denied pursuant to CPLR 3212 (f), as plaintiff had not received discovery regarding the reasonableness of defendant’s EUO requests.

Contrary to plaintiff’s argument, the affidavits submitted by defendant established that the EUO scheduling letters and the denial of claim forms had been timely mailed in accordance with its standard office practices and procedures (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008] Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Furthermore, since plaintiff does not claim to have responded in any way to the EUO requests, its objections regarding the EUO requests will not now be heard (see Viviane Etienne Med. Care, P.C. v State Farm Mut. Auto. Ins. Co., 35 Misc 3d 127[A], 2012 NY Slip Op 50579[U] [App Term, 2d, 11th & 13th Jud Dists 2012] Crescent Radiology, PLLC v American Tr. Ins. Co., 31 Misc 3d 134[A], 2011 NY Slip Op 50622[U] [App Term, 9th & 10th Jud Dists 2011]). Consequently, discovery relevant to the reasonableness of the EUO requests was not necessary for plaintiff to oppose defendant’s motion (see CPLR 3212 [f]). Finally, contrary to plaintiff’s argument on appeal, the affirmation submitted by defendant’s attorney, who was present in his office to conduct plaintiff’s EUO on the scheduled dates, was sufficient to establish that plaintiff had failed to appear.

Accordingly, the order is affirmed.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: January 28, 2014