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Mega Supplies Billing, Inc. As Assignee of Frederick Bianchi v. State Farm Mutual Automobile Ins. Co

New York Supreme and/or Appellate Courts SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS


June 27, 2012

MEGA SUPPLIES BILLING, INC. AS ASSIGNEE OF FREDERICK BIANCHI,
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 (Peter Paul Sweeney, J.), entered September 8, 2010.

Mega Supplies Billing, Inc. v State Farm Mut. Auto. Ins. Co.

Decided on June 27, 2012

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This opinion is uncorrected and will not be published in the printed Official Reports.

PRESENT: WESTON, J.P., PESCE and ALIOTTA, JJ

The order granted defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court granting defendant's motion for summary judgment dismissing the complaint.

Plaintiff argues that defendant is not entitled to summary judgment because defendant failed to establish that it had timely mailed examination under oath (EUO) scheduling letters and denial of claim forms. In support of its motion for summary judgment, defendant submitted affidavits by its litigation examiner, and by its special investigative unit and mail room employees, which were sufficient to establish that the EUO scheduling letters and denial of claim forms, which denied plaintiff's claims on the ground of plaintiff's failure to appear for scheduled EUOs, had been timely mailed (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Since an appearance at an EUO is a condition precedent to an insurer's liability on a policy (see Insurance Department Regulations [11 NYCRR] § 65-1.1; Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]), the order is affirmed.

We note that plaintiff's remaining contention on appeal, to the effect that defendant failed to establish plaintiff's failure to appear at the EUOs, is not properly before this court since it is raised for the first time in plaintiff's reply brief on appeal. In any event, plaintiff conceded in its papers submitted in opposition to defendant's motion that plaintiff's nonattendance was "not in dispute." Weston, J.P., Pesce and Aliotta, JJ., concur.

Decision Date: June 27, 2012

20120627

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