July 13, 2012

All Boro Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co. (2012 NY Slip Op 51346(U))

Headnote

The relevant facts considered by the court were that the plaintiff, All Boro Psychological Services, P.C., was seeking to recover no-fault benefits from the defendant, State Farm Mutual Automobile Insurance Co. The main issue decided was whether the defendant had met the necessary requirements for mailing letters scheduling examinations under oath (EUOs) and denial of claim forms. The court held that the defendant had submitted sufficient proof of mailing of the EUO scheduling letters, and the plaintiff had failed to appear at the scheduled EUOs. The court further held that the appearance of the provider at the requested EUOs was a condition precedent to the insurer's liability, and since the plaintiff did not respond in any way to the EUO requests, their complaints regarding the EUO requests would not be considered. Therefore, the judgment to dismiss the complaint was affirmed.

Reported in New York Official Reports at All Boro Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co. (2012 NY Slip Op 51346(U))

All Boro Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co. (2012 NY Slip Op 51346(U)) [*1]

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

2012 NY Slip Op 51346(U) [36 Misc 3d 135(A)]

Decided on July 13, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 July 13, 2012

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

PRESENT: : PESCE, P.J., WESTON and RIOS, JJ
2010-1767 K C.

All Boro Psychological Services, P.C. as Assignee of JOSE BAEZ, Appellant, —
against
State Farm Mutual Automobile Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Dawn Jimenez Salta, J.), entered March 12, 2010. The order, insofar as appealed from as limited by the brief, granted defendant’s cross motion for summary judgment dismissing the complaint. The appeal is deemed to be from a judgment of the same court entered May 4, 2010 dismissing the complaint (see CPLR 5501 [c]).

ORDERED that the judgment is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals, as limited by its brief, from so much of an order of the Civil Court as 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]).

Defendant submitted proof establishing that the letters scheduling the examinations under oath (EUOs) 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]). In the present case, the claims representative’s affidavit specifically referenced the article number on the scheduling letter and listed in the certificate of mailing. This, together with the affidavit from the [*2]team manager, which details the practices and procedures for mailing requests for examinations under oath, and the affidavit from the mail room assistant detailing the procedures in place and utilized for mail, was sufficient to demonstrate proof of mailing. Defendant also submitted an affirmation from one of the attorneys who was responsible for conducting the EUOs at issue, which established 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]).

The appearance of a provider at a duly requested 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 at 722; Crotona Hgts. Med., P.C. v Farm Family Cas. Ins. Co., 27 Misc 3d 134[A], 2010 NY Slip Op 50716[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). Plaintiff does not claim to have responded in any way to the EUO requests. Therefore, plaintiff’s complaints regarding the EUO requests will not now be heard (see 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]; cf. Westchester County Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 262 AD2d 553 [1999]; Urban Radiology, P.C. v Tri-State Consumer Ins. Co., 27 Misc 3d 140[A], 2010 NY Slip Op 50987[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; Mary Immaculate Hosp. v New York Cent. Mut. Fire Ins. Co., 21 Misc 3d 130[A], 2008 NY Slip Op 52046[U] [App Term, 9th & 10th Jud Dists 2008]).

Accordingly, the judgment is affirmed.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: July 13, 2012