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Dream Acupuncture, P.C. v. State Farm Fire & Casualty Co.

Supreme Court of New York, Second Department

November 26, 2013

Dream Acupuncture, P.C. as Assignee of CARLOS GAUSE, Appellant,
v.
State Farm Fire & Casualty Company, Respondent.

PRESENT:: PESCE, P.J., ALIOTTA and SOLOMON, JJ

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered March 11, 2011. 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, defendant moved for summary judgment dismissing the complaint, alleging that the claims at issue had been timely denied based upon plaintiff's failure to appear at properly scheduled examinations under oath (EUOs). Plaintiff appeals from an order of the Civil Court which granted defendant's motion.

Contrary to plaintiff's first argument on appeal, defendant's affidavits sufficiently described defendant's standard practices and procedures for mailing EUO scheduling letters and denial of claim forms (see Residential Holding Corp. v Scottsdale Ins. Co., 286 A.D.2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc.3d 16 [App Term, 2d & 11th Jud Dists 2007]).

Contrary to plaintiff's other argument on appeal, it was not defendant's burden to demonstrate that the applicable policy condition contains a provision for using EUOs as a method of verifying claims. As we have previously noted, effective April 5, 2002, the mandatory personal injury endorsement contains a provision for EUOs (see Insurance Department Regulations [11 NYCRR] § 65-1.1 [b]). The accident in question occurred on February 9, 2007. Since the policy in this case would have been issued after 2002, it would necessarily have contained a provision for EUOs, and, thus, defendant was not required to produce the policy to establish the existence of such a provision (see Mega Supplies Billing, Inc. v State Farm Mut. Auto. Ins. Co., 33 Misc.3d 136 [A], 2011 NY Slip Op 52023[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; Eagle Chiropractic, P.C. v Chubb Indem. Ins. Co., 19 Misc.3d 129 [A], 2008 NY Slip Op 50525[U] [App Term, 9th & 10th Jud Dists 2008]). Indeed, "[e]ven if the insurance policy did not contain an EUO provision, the policy would be construed as though it did" (Mega Supplies Billing, Inc., 33 Misc.3d 136[A], 2011 NY Slip Op 52023[U], *1).

Accordingly, the order is affirmed.

Pesce, P.J., Aliotta and Solomon, JJ., concur.


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