Appeal from an order of the Civil Court of the City of New York, Kings County (Robin D. Garson, J.), entered August 20, 2009.
GLM Med., P.C. v State Farm Mut. Auto. Ins. Co.
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This opinion is uncorrected and will not be published in the printed Official Reports.
Decided on February 14, 2011
PRESENT: PESCE, P.J., GOLIA and STEINHARDT, JJ
The order denied defendant's motion for summary judgment dismissing the complaint.
ORDERED that the order is reversed, without costs, and defendant's motion for summary judgment dismissing the complaint is granted.
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 scheduled examinations under oath (EUOs) or, in the alternative, that plaintiff's action was premature, in that plaintiff had not provided requested additional verification. Plaintiff submitted no written opposition to defendant's motion. The Civil Court denied defendant's motion, finding that the EUO scheduling letters were inadequate because they did not delineate the place and location of the EUO in a conspicuous manner, "i.e. bold or larger font," and that defendant had failed to establish plaintiff's nonappearance at the EUOs. This appeal by defendant ensued.
The affidavits submitted by defendant established that the EUO
scheduling letters were timely mailed in accordance with the affiants'
employers' standard office practices and procedures (see St. Vincent's
Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 ;
Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 ;
Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d
16 [App Term, 2d & 11th Jud Dists 2007]). Defendant also submitted an
affirmation from one of its attorneys, who was responsible for conducting the
EUOs at issue. He alleged facts sufficient to establish that plaintiff had failed to appear
at counsel's former law office for duly scheduled EUOs (see Stephen Fogel Psychological,
P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 ; W & Z Acupuncture, P.C. v Amex Assur. Co.,
24 Misc 3d 142[A], 2009 NY Slip Op 51732[U] [App Term, 2d, 11th & 13th Jud Dists 2009]).
Such an appearance at an EUO is a condition precedent to the insurer's liability on the policy
(see Insurance Department Regulations [11 NYCRR] § 65-1.1;
Stephen Fogel Psychological, P.C., 35
AD3d at 722; Crotona Hgts. Med., P.C. v Farm Family Cas. Ins. Co., 27
Misc 3d 134[A], 2010 NY Slip Op 50716[U] [App Term, 2d, 11th & 13th Jud Dists 2010]).
Further, contrary to the Civil Court's determination, there is no requirement that EUO scheduling
letters conspicuously highlight the time and place of the EUO by use of, among other things, a bold or
larger font (see Insurance Department Regulations [11 NYCRR] § 65-3.5
[b], [e]). Accordingly, the order is reversed and defendant's motion
for summary judgment dismissing the complaint is granted. In light of
the foregoing, we reach no other issue.
Pesce, P.J., Golia and Steinhardt, JJ., concur. Decision Date: February 14, 2011
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