Appeal from an order of the Civil Court of the City of New York, Kings County (Devin P. Cohen, J.), dated June 3, 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This opinion is uncorrected and will not be published in the printed Official Reports.
PRESENT: PESCE, P.J., RIOS and SOLOMON, JJ
The order granted defendant's motion for summary judgment dismissing the complaint.
ORDERED that the order 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 granted defendant's motion for summary judgment dismissing the complaint, finding that plaintiff had failed to comply with a condition precedent to coverage in that it had failed to appear for duly scheduled examinations under oath (EUOs). Plaintiff argues that defendant failed to prove that it had mailed its EUO scheduling letters and denial of claim forms, that it lacked justification for its EUO requests, and that defendant's motion should have been denied pursuant to CPLR 3212 (f).
Contrary to plaintiff's argument, the affidavits submitted by
defendant established that the EUO scheduling letters and the denial
of claim forms, which denied the claim based on plaintiff's
failure to appear, 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]). Since plaintiff does not claim to have responded in any way to the EUO request, its objections
regarding the EUO requests will not now be heard (see Viviane Etienne Med. Care, P.C. v State Farm Mut. Auto. Ins. Co., 35 Misc 3d 127[A],
2012 NY Slip Op 50579[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]), and therefore discovery relevant to the reasonableness of the EUO requests was not necessary to oppose the
motion (see CPLR 3212 [f]).
Accordingly, the order is affirmed.
Pesce, P.J., Rios and Solomon, JJ., concur. Decision Date: May 06, 2013
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