New York Supreme and/or Appellate Courts SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
September 19, 2012
ALL BORO PSYCHOLOGICAL SERVICES, P.C. AS ASSIGNEE OF HENRY MCCORKLE,
APPELLANT, -- THE
HARTFORD INS. CO.,
Appeal from an order of the Civil Court of the City of New York, Kings County (Johnny Lee Baynes, J.), entered October 8, 2010, deemed from a judgment of the same court entered November 4, 2010 (see CPLR 5501 [c]).
All Boro Psychological Servs., P.C. v Hartford Ins. Co.
Decided on September 19, 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This opinion is uncorrected and will not be published in the printed Official Reports.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., RIOS and ALIOTTA, JJ
The judgment, entered pursuant to the October 8, 2010 order granting defendant's motion for summary judgment, dismissed the complaint.
ORDERED that the judgment is affirmed, without costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant's 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]).
Contrary to plaintiff's contentions on appeal, the affidavits
submitted by defendant established that the 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]), and 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]).
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., 35 AD3d
720). As plaintiff's remaining contention lacks merit, the judgment is
Pesce, P.J., Rios and Aliotta, JJ., concur. Decision Date: September 19, 2012
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