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

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


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This opinion is uncorrected and will not be published in the printed Official Reports.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

Rios, J., dissents and votes to affirm the order in the following memorandum:

In support of its motion for summary judgment dismissing the complaint, defendant failed to submit evidence from someone with personal knowledge establishing the nonappearance of the assignor for the scheduled examinations under oath (EUOs) (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).

Defendant's affiant stated: "[M]y former firm would send an employee of said law firm to the deposition center upon which the EUO was supposed to occur for the purpose of confirming that the deponent was not present at the said deposition center. The attorney would personally confirm this fact with the former law firm's office and a notation will be made in the computer system."

Defendant's affiant, who had no personal knowledge that a notation had been made in the computer system, made conclusory allegations regarding defendant's office practices and did not establish, as a matter of law, that defendant had followed those office practices (see Hospital for Joint Diseases v Nationwide Mut. Ins. Co., 284 AD2d 374 [2001]). Moreover, proof of the contents of a writing require the production of the document (see Schozer v William Penn Life Ins. Co. of NY, 84 NY2d 639 [1994]).

Contrary to the finding of the majority, defendant failed to meet its burden by proof in admissible form that the assignor had failed to appear for the EUOs (see CPLR 4518 [a]).

Accordingly, defendant's motion was properly denied.

Decision Date: August 07, 2012

20120807

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