Opinion
No. 2014–717KC.
09-27-2016
STRACAR MEDICAL SERVICES, as Assignee of Freddie M. Velez, 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 (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 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 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 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] ). 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 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] ).
Accordingly, the order is affirmed.
PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.