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Flatlands Medical, P.C. As Assignee of Oniel Stanbury v. State Farm Mutual Automobile Ins. Co

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


January 14, 2013

FLATLANDS MEDICAL, P.C. AS ASSIGNEE OF ONIEL STANBURY,
APPELLANT,
v.
STATE FARM MUTUAL AUTOMOBILE INS. CO.,
RESPONDENT.

Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered March 15, 2011.

Flatlands Med., P.C. v State Farm Mut. Auto. 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This opinion is uncorrected and will not be published in the printed Official Reports.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 January 14, 2013

PRESENT: PESCE, P.J., WESTON and RIOS, JJ

The order, insofar as appealed from as limited by the brief, upon treating defendant's motion, pursuant to CPLR 3211, to dismiss the complaint, as one for summary judgment dismissing the complaint (see CPLR 3211 [c]), granted defendant's motion.

ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved, pursuant to CPLR 3211, to dismiss the complaint on the ground that plaintiff had failed to satisfy a condition precedent to coverage by not appearing for scheduled examinations under oath (EUOs). The Civil Court gave notice to the parties that it would treat the motion as a motion for summary judgment dismissing the complaint (see CPLR 3211 [c]) and subsequently granted defendant's motion. This appeal by plaintiff ensued.

The affidavits submitted by defendant established that the 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 had failed to appear at the 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 did not allege that it had responded in any way to the 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]).

In view of the foregoing, plaintiff's remaining contention is without merit. Accordingly, the order, insofar as appealed from, is affirmed.

Pesce, P.J., Weston and Rios, JJ., concur. Decision Date: January 14, 2013

20130114

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