June 27, 2012

Colonia Med., P.C. v State Farm Mut. Auto. Ins. Co. (2012 NY Slip Op 51273(U))

Headnote

The main issue in this case was whether State Farm Mutual Automobile Insurance Company was entitled to summary judgment in an action by a medical provider to recover first-party no-fault benefits. The court considered whether State Farm had established that it timely mailed examination under oath (EUO) scheduling letters and denial of claim forms. In support of its motion for summary judgment, State Farm submitted affidavits by its special investigative unit team manager, mail room employee and bulk mail vendor, which were sufficient to establish that the EUO scheduling letters and denial of claim forms had been timely mailed. The court held that an appearance at an EUO is a condition precedent to an insurer's liability on a policy, and as such, State Farm was entitled to summary judgment. Therefore, the court affirmed the order granting State Farm's motion for summary judgment.

Reported in New York Official Reports at Colonia Med., P.C. v State Farm Mut. Auto. Ins. Co. (2012 NY Slip Op 51273(U))

Colonia Med., P.C. v State Farm Mut. Auto. Ins. Co. (2012 NY Slip Op 51273(U)) [*1]

Colonia Med., P.C. v State Farm Mut. Auto. Ins. Co.

2012 NY Slip Op 51273(U) [36 Misc 3d 129(A)]

Decided on June 27, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 June 27, 2012

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

PRESENT: : PESCE, P.J., RIOS and ALIOTTA, JJ
2010-3255 K C.

Colonia Medical, P.C. as Assignee of GARNETT SMITH, 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 (Peter Paul Sweeney, J.), entered October 29, 2010. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order 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 granting defendant’s motion for summary judgment dismissing the complaint.

Plaintiff argues that defendant is not entitled to summary judgment because defendant failed to establish that it had timely mailed examination under oath (EUO) scheduling letters and denial of claim forms. In support of its motion for summary judgment, defendant submitted affidavits by its special investigative unit team manager, mail room employee and bulk mail vendor, respectively, which were sufficient to establish that the EUO scheduling letters and denial of claim forms, which denied plaintiff’s claims on the ground of plaintiff’s failure to appear for scheduled EUOs, 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 [*2]Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). An appearance at an 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. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). As plaintiff’s remaining contention lacks merit (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]), the order is affirmed.

Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: June 27, 2012