September 19, 2012

All Boro Psychological Servs., P.C. v Hartford Ins. Co. (2012 NY Slip Op 51849(U))

Headnote

The relevant facts considered by the court were that the plaintiff, a provider seeking first-party no-fault benefits, had failed to appear at the scheduled examinations under oath (EUOs) as required by the insurance company. The main issue decided was whether the insurance company had met the conditions for liability on the policy by timely mailing the EUO scheduling letters and the denial of claim form, and whether the plaintiff's failure to appear at the EUOs was a valid defense for the insurance company. The holding of the court was that the insurance company had met the conditions for liability on the policy, and the plaintiff's failure to appear at the EUOs was a valid defense for the insurance company. Therefore, the court affirmed the judgment in favor of the insurance company.

Reported in New York Official Reports at All Boro Psychological Servs., P.C. v Hartford Ins. Co. (2012 NY Slip Op 51849(U))

All Boro Psychological Servs., P.C. v Hartford Ins. Co. (2012 NY Slip Op 51849(U)) [*1]

All Boro Psychological Servs., P.C. v Hartford Ins. Co.

2012 NY Slip Op 51849(U) [37 Misc 3d 126(A)]

Decided on September 19, 2012

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This opinion is uncorrected and will not be published in the printed Official Reports.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 September 19, 2012

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., RIOS and ALIOTTA, JJ
2011-308 K C.

All Boro Psychological Services, P.C. as Assignee of HENRY McCORKLE, Appellant, — The
against
Hartford Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Johnny Lee Baynes, J.), entered October 8, 2010, deemed from a judgment of the same court entered November 4, 2010 (see CPLR 5501 [c]). The judgment, entered pursuant to the October 8, 2010 order granting defendant’s motion for summary judgment, dismissed the complaint.

ORDERED that the judgment is affirmed, without 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. 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 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]; W & Z Acupuncture, P.C. v Amex Assur. Co., 24 Misc 3d 142[A], 2009 NY Slip Op 51732[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). An appearance at an EUO is a condition precedent to [*2]an insurer’s liability on a policy (see Insurance Department Regulations [11 NYCRR] § 65-1.1; Stephen Fogel Psychological, P.C., 35 AD3d 720). As plaintiff’s remaining contention lacks merit, the judgment is affirmed.

Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: September 19, 2012