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Five Boro Psychological Services, P.C. As Assignee of Orbria Turner, Appellant v. State Farm Mutual Automobile Ins. Co.

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


May 6, 2013

FIVE BORO PSYCHOLOGICAL SERVICES, P.C. AS ASSIGNEE OF ORBRIA TURNER, 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 June 25, 2010, deemed from a judgment of the same court entered October 27, 2010 (see CPLR 5501 [c]).

Five Boro Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co.

Decided on May 6, 2013

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This opinion is uncorrected and will not be published in the printed Official Reports.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 SOLOMON, JJ

The judgment, entered pursuant to the June 25, 2010 order denying plaintiff's motion for summary judgment and granting defendant's cross motion for summary judgment, dismissed the complaint.

ORDERED that the judgment is affirmed, with $25 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 denied its motion for summary judgment and granted defendant's cross 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 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]), 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 [2006]). 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). In view of the foregoing, and as plaintiff's remaining contentions lack merit, the judgment is affirmed.

Pesce, P.J., Rios and Solomon, JJ., concur. Decision Date: May 06, 2013

20130506

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