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Eagle Surgical Supply, Inc. As Assignee of Edison Durand, Respondent v. Aig Insurance Co.

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


August 31, 2012

EAGLE SURGICAL SUPPLY, INC. AS ASSIGNEE OF EDISON DURAND, RESPONDENT, --
v.
AIG INSURANCE CO., APPELLANT.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered June 30, 2010.

Eagle Surgical Supply, Inc. v AIG 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This opinion is uncorrected and will not be published in the printed Official Reports.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 31, 2012

PRESENT: PESCE, P.J., RIOS and ALIOTTA, 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.

The affidavits submitted by defendant established that the examination under oath (EUO) scheduling letters and the denial of claim forms 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 demonstrated that plaintiff's assignor had failed to appear at duly scheduled EUOs, and therefore had failed to satisfy a condition precedent to defendant insurer's liability on the subject policy (see Insurance Department Regulations [11 NYCRR] § 65-1.1; Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Plaintiff's objections regarding the EUO requests should not have been considered by the Civil Court, as plaintiff does not allege that its assignor had responded in any way to defendant's EUO requests (cf. Leica Supply, Inc. v Encompass Indem. Co., 35 Misc 3d 142[A], 2012 NY Slip Op 50890[U] [App Term, 2d, 11th & 13th Jud Dists 2012]; 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]).

Accordingly, the order is reversed and defendant's motion for summary judgment dismissing the complaint is granted.

Pesce, P.J., Rios and Aliotta, JJ., concur.

Decision Date: August 31, 2012

20120831

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