June 24, 2013
NEW CENTURY MEDICAL DIAGNOSTICS, P.C., A/A/O Diana Raphael, Delano Inniss, Curtis T. Small, Plaintiff,
UTICA MUTUAL INSURANCE COMPANY, Defendant.
Baker, Sanders, Barshay, Grossman, Fass, Muhlstock & Neuwirth, Garden City, for Plaintiff, New Century Medical Diagnostics, P.C.
Dodge and Monroy, Melville, for Defendant, Utica Mutual Insurance Company.
JAMES E. D'AUGUSTE, J.
Defendant Utica Mutual Insurance Company (" Utica" ) seeks summary judgment dismissing Plaintiff New Century Medical Diagnostics, P.C.'s (" New Century" ) no-fault benefits action.
The parties' submissions demonstrate that New Century timely submitted its claims and Utica timely denied the claims
based upon New Century's failure to appear at two scheduled examinations under oath. Defaulting in appearing at properly scheduled examinations under oath represents a failure to comply with a condition precedent to coverage. Unitrin Advantage Ins. Co. v. Bayshore Physical Therapy, PPLC, 82 A.D.3d 559, 918 N.Y.S.2d 473 (1st Dep't 2011); Stephen Fogel Psychological, P.C. v. Progressive Cas. Ins. Co., 35 A.D.3d 720, 827 N.Y.S.2d 217 (2d Dep't 2006). New Century has not denied its non-appearance, but asserts that the notices were defective because they sought the production of a specific individual. In advancing this argument, New Century relies upon a New York State [967 N.Y.S.2d 911] Insurance Department  opinion letter holding that a no-fault medical provider can produce any individual with personal knowledge at a scheduled examination under oath. 2009 NYSID OGC Op. No. 09-06-10 (Alexander Tisch, Esq.). The Insurance Department, however, did not opine that an insurer's attempt to secure the production of a particular person renders the entire verification request a nullity. Rather, the opinion letter merely holds that a no-fault provider is permitted to designate any individual with knowledge irrespective of an insurer's demand that a specific individual appear. Thus, while New Century was not required to produce the specific person Utica requested, its failure to produce any person at the scheduled examinations under oath permitted Utica to deny New Century's claims.
Accordingly, Utica's motion for summary judgment dismissing the complaint is granted. This constitutes the decision and order of the Court.