Opinion
No. 2014–1991 K C.
04-25-2016
PROFESSIONAL HEALTH IMAGING, P.C., as Assignee of Jennifer Donofrio, 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 (Carol Ruth Feinman, J.), entered July 7, 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] ). Indeed, in support of plaintiff's cross motion, plaintiff's counsel virtually conceded that plaintiff had failed to appear for the EUOs. Contrary to plaintiff's further argument, defendant established that it had properly tolled its time to pay the two claims in question (see 11 NYCRR 65–3.5 [b]; 65–3.6[b]; see also ARCO Med. NY, P.C. v. Lancer Ins. Co., 34 Misc.3d 134[A], 2011 N.Y. Slip Op 52382[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011] ).
We also reject plaintiff's contention that defendant's motion was premature in light of outstanding discovery (see CPLR 3212[f] ). Plaintiff did not object to the reasonableness of the EUO requests at the time they were made. Instead, plaintiff improperly demanded that defendant pay a flat, up-front fee of $4,500 for plaintiff to attend the EUO, as opposed to seeking reimbursement for any loss of earnings and reasonable transportation expenses as set forth in the regulations (see 11 NYCRR 65–3.5 [e] ). As plaintiff did not object to defendant's reasons for seeking the EUO during the claims processing stage, plaintiff may not raise such objections 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] ). Thus, any discovery relevant to the reasonableness of the EUO requests was not necessary for plaintiff to oppose defendant's motion (cf. 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] ).
Plaintiff's remaining arguments are moot and/or lack merit.
Accordingly, the order is affirmed.
ELLIOT, J.P., WESTON and SOLOMON, JJ., concur.