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Quality Psychological Services, P.C. As Assignee of Daniel Robinson v. Interboro Mutual Indemnity Insurance Company

August 7, 2012

QUALITY PSYCHOLOGICAL SERVICES, P.C. AS ASSIGNEE OF DANIEL ROBINSON,
RESPONDENT,
v.
INTERBORO MUTUAL INDEMNITY INSURANCE COMPANY,
APPELLANT.



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This opinion is uncorrected and will not be published in the printed Official Reports.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 [2008]; 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 [2006]; 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 [1980]).

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 ...


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