Corona Hgts. Med., P.C. v Lancer Ins. Co. (2011 NY Slip Op 51293(U))

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Lisa S. Ottley, J.), entered July 17, 2009. The order, insofar as appealed from, granted the branches of defendant’s motion seeking summary judgment dismissing the complaint as to claims totaling $1,092.93 for services rendered November 23, 2005 through December 7, 2005.

ORDERED that the order, insofar as appealed from, is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear at scheduled examinations under oath (EUOs). The Civil Court granted the motion to the extent of dismissing claims totaling $1,092.93 for services rendered November 23, 2005 through December 7, 2005, and plaintiff appeals.

A review of the record indicates that defendant’s motion papers were sufficient to establish that the letters scheduling the EUOs had been timely mailed in accordance with the standard office practices and procedures of the law firm retained by defendant to conduct the EUOs and that the claim denial form, which denied the claims in question on the ground of failure to appear for EUOs, had been timely mailed in accordance with defendant’s standard office practices and procedures (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]). Defendant also demonstrated that plaintiff had failed to appear for the 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]). Since the appearance of [*2]an eligible injured person’s assignee at an EUO upon a proper request is a condition precedent to the assignee’s right to recover under the policy (see Insurance Department Regulations [11 NYCRR] § 65-1.1; Stephen Fogel Psychological, P.C., 35 AD3d at 722; W & Z Acupuncture, P.C., 24 Misc 3d 142[A], 2009 NY Slip Op 51732[U]), defendant was entitled to summary judgment dismissing the claims in question.

Plaintiff’s remaining contentions either lack merit or are improperly raised for the first time on appeal (see Gulf Ins. Co. v Kanen, 13 AD3d 579 [2004]). Accordingly, the order, insofar as appealed from, is affirmed.

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: July 05, 2011