Opinion
No. 2014–2016 K C.
06-23-2016
PROFESSIONAL HEALTH IMAGING, P.C., as Assignee of Luis Lopez, 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 (Ingrid Joseph, J.), entered June 30, 2014. The order granted defendant's motion for summary judgment dismissing the complaint and denied plaintiff's cross motion for summary judgment or, in the alternative, to strike defendant's answer and affirmative defenses, and to compel defendant to respond to discovery demands.
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 for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs). Plaintiff cross-moved for summary judgment or, in the alternative, to strike defendant's answer and affirmative defenses, and to compel defendant to respond to discovery demands. Plaintiff appeals from an order of the Civil Court granting defendant's motion and denying plaintiff's cross motion.
Contrary to plaintiff's argument on appeal, 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 N.Y. 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 N.Y. Slip Op 51310[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014] ). Plaintiff failed to allege, much less prove, that it had responded in any way to the EUO requests at issue. Thus, 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 N.Y. Slip Op 50406[U] ; Metro Health Prods., Inc. v. State Farm Mut. Auto. Ins. Co., 47 Misc.3d 127 [A], 2015 N.Y. Slip Op 50402[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015] ), and any 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 N.Y. 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 N.Y. Slip Op 50406[U] ; Metro Health Prods., Inc ., 47 Misc.3d 127[A], 2015 N.Y. Slip Op 50402[U] ). Consequently, contrary to plaintiff's further argument on appeal, there was no outstanding discovery warranting the denial of defendant's motion pursuant to CPLR 3212(f).
The issues raised in plaintiff's remaining arguments are moot and/or lack merit.
Accordingly, the order is affirmed.
PESCE, P.J., WESTON and ELLIOT, JJ., concur.