SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
July 5, 2011
CORONA HEIGHTS MEDICAL, P.C. AS ASSIGNEE OF ROSE WATSON,
LANCER INSURANCE COMPANY,
Appeal from an order of the Civil Court of the City of New York, Kings County (Lisa S. Ottley, J.), entered July 17, 2009.
Corona Hgts. Med., P.C. v Lancer Ins. Co.
2011 NY Slip Op 51293(U)
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This opinion is uncorrected and will not be published in the printed Official Reports.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 July 5, 2011
PRESENT: PESCE, P.J., RIOS and STEINHARDT, JJ
The order, insofar as appealed from, granted the branches of defendant's motion seeking summary judgment dismissing the complaint as to claims totaling $1,092.93 for services rendered November 23, 2005 through December 7, 2005.
ORDERED that the order, insofar as appealed from, is affirmed, without 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 at scheduled examinations under oath (EUOs). The Civil Court granted the motion to the extent of dismissing claims totaling $1,092.93 for services rendered November 23, 2005 through December 7, 2005, and plaintiff appeals.
A review of the record indicates that defendant's motion papers were
sufficient to establish that the letters scheduling the EUOs had been
timely mailed in accordance with the standard office practices and
procedures of the law firm retained by defendant to conduct the EUOs
and that the claim denial form, which denied the claims in question on
the ground of failure to appear for EUOs, had been timely mailed in
accordance with defendant's standard office practices and procedures
(see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50
AD3d 1123 ; Delta Diagnostic Radiology, P.C. v Chubb Group of
Ins., 17 Misc 3d 16, [App Term, 2d & 11th Jud Dists 2007]). Defendant also demonstrated that
plaintiff had failed to appear for the 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]). Since the appearance of
an eligible injured person's assignee at an EUO upon a proper request is a condition precedent to
the assignee's right to recover under the policy (see Insurance Department Regulations
[11 NYCRR] § 65-1.1; Stephen Fogel
Psychological, P.C., 35 AD3d at 722; W
& Z Acupuncture, P.C., 24 Misc 3d 142[A], 2009 NY Slip Op 51732[U]), defendant was entitled to
summary judgment dismissing the claims in question.
Plaintiff's remaining contentions either lack merit or are improperly raised for the first time on appeal (see Gulf Ins. Co. v Kanen, 13 AD3d 579 ). Accordingly, the order, insofar as appealed from, is affirmed.
Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: July 05, 2011
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