New York Supreme and/or Appellate Courts SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
July 13, 2012
ALL BORO PSYCHOLOGICAL SERVICES, P.C. AS ASSIGNEE OF JOSE BAEZ,
STATE FARM MUTUAL AUTOMOBILE INS. CO.,
Appeal from an order of the Civil Court of the City of New York, Kings County (Dawn Jimenez Salta, J.), entered March 12, 2010.
All Boro Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co.
Decided on July 13, 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This opinion is uncorrected and will not be published in the printed Official Reports.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: PESCE, P.J., WESTON and RIOS, JJ
The order, insofar as appealed from as limited by the brief, granted defendant's cross motion for summary judgment dismissing the complaint. The appeal is deemed to be from a judgment of the same court entered May 4, 2010 dismissing the complaint (see CPLR 5501 [c]).
ORDERED that the judgment is affirmed, without costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals, as limited by its brief, from so much of an order of the Civil Court as granted defendant's cross motion for summary judgment dismissing the complaint. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).
Defendant submitted proof establishing that the letters scheduling the
examinations under oath (EUOs) and the denial of claim form had been
timely mailed (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]).
In the present case, the claims representative's affidavit specifically referenced the article number on the
scheduling letter and listed in the certificate of mailing. This, together with the affidavit from the team manager,
which details the practices and procedures for mailing requests for examinations under oath, and the affidavit from
the mail room assistant detailing the procedures in place and utilized for mail, was sufficient to demonstrate proof of
mailing. Defendant also submitted an affirmation from one of the attorneys who was responsible for conducting the
EUOs at issue, which established that plaintiff had failed to appear at either of the 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]).
The appearance of a provider at a duly requested 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., 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]). Plaintiff does not claim to have responded in any way to the EUO requests.
Therefore, plaintiff's complaints regarding the EUO requests will not now be heard (see Crescent Radiology, PLLC
v American Tr. Ins. Co., 31 Misc 3d 134[A], 2011 NY Slip Op 50622[U] [App Term, 9th & 10th Jud Dists 2011]; cf.
Westchester County Med. Ctr. v New York Cent.
Mut. Fire Ins. Co., 262 AD2d 553 ; Urban Radiology, P.C. v
Tri-State Consumer Ins. Co., 27 Misc 3d 140[A], 2010 NY Slip Op
50987[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; Mary Immaculate Hosp. v New York Cent.
Mut. Fire Ins. Co., 21 Misc 3d 130[A], 2008 NY Slip Op 52046[U] [App
Term, 9th & 10th Jud Dists 2008]).
Accordingly, the judgment is affirmed.
Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: July 13, 2012
© 1992-2012 VersusLaw Inc.