Appeal from an order of the Civil Court of the City of New York, Kings County (Margaret A. Pui Yee Chan, J.), entered December 17, 2010.
Quality Psychological Servs., P.C. v Interboro Mut. Indem. 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This opinion is uncorrected and will not be published in the printed Official Reports.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 August 7, 2012
PRESENT: WESTON, J.P., PESCE and RIOS, 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 appeals from an order of the Civil Court which denied its motion for summary judgment dismissing the complaint.
The affidavits submitted by defendant established that the examination
under oath (EUO) scheduling letters 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]). Defendant also
submitted an affirmation by an attorney who was at the time of the scheduled EUOs, the
"managing no-fault attorney" of the law firm retained by defendant to conduct the assignor's
EUO, which set forth the law firm's practices and procedures in establishing appearances at
EUOs and which demonstrated that the assignor had failed to appear at either of the duly scheduled
EUOs (see 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
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,
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]).
In opposition to defendant's motion, plaintiff failed to raise a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557 ).
Accordingly, the order is reversed and defendant's motion for summary judgment dismissing the complaint is granted.
Weston, J.P., Pesce, J., concur.
Rios, J., dissents in a separate ...