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Flatbush Chiropractic, P.C. As Assignee of Leon Bryant, Appellant v. State Farm Mutual Automobile Ins. Co.

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS New York Supreme and/or Appellate Courts


May 6, 2013

FLATBUSH CHIROPRACTIC, P.C. AS ASSIGNEE OF LEON BRYANT, APPELLANT, --
v.
STATE FARM MUTUAL AUTOMOBILE INS. CO., RESPONDENT.

Appeal from an order of the Civil Court of the City of New York, Kings County (Devin P. Cohen, J.), entered April 4, 2011.

Flatbush Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co.

Decided on May 6, 2013

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This opinion is uncorrected and will not be published in the printed Official Reports.

PRESENT: PESCE, P.J., RIOS and SOLOMON, JJ

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, finding that plaintiff had failed to comply with a condition precedent to coverage in that it had failed to appear for duly scheduled examinations under oath (EUOs), and denied plaintiff's cross motion for summary judgment. Plaintiff argues that defendant failed to prove that it had mailed its EUO scheduling letters and denial of claim forms and that defendant lacked justification for its 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 (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]).

Accordingly, the order is affirmed.

Pesce, P.J., Rios and Solomon, JJ., concur. Decision Date: May 06, 2013

20130506

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