November 26, 2013

Dream Acupuncture, P.C. v State Farm Fire & Cas. Co. (2013 NY Slip Op 51997(U))

Headnote

A provider sued State Farm for assigned first-party no-fault benefits, and the Civil Court, Kings County, granted State Farm summary judgment because the claims were timely denied after the plaintiff failed to appear for scheduled examinations under oath. The Appellate Term, Second Department, held that the insurer's affidavits sufficiently described its standard practices for mailing EUO scheduling letters and denials. It also held that the insurer did not have to produce the policy to prove an EUO provision existed, because the accident occurred in 2007 and the mandatory personal injury endorsement has contained an EUO provision since April 2002. The order was affirmed.

Reported in New York Official Reports at Dream Acupuncture, P.C. v State Farm Fire & Cas. Co. (2013 NY Slip Op 51997(U))

[*1]
Dream Acupuncture, P.C. v State Farm Fire & Cas. Co.
2013 NY Slip Op 51997(U) [41 Misc 3d 139(A)]
Decided on November 26, 2013
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This opinion is uncorrected and will not be published in the printed Official Reports.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 November 26, 2013
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ
2011-1251 K C.

Dream Acupuncture, P.C. as Assignee of CARLOS GAUSE, Appellant, —

against

State Farm Fire & Casualty Company, Respondent.


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 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). [*2]

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.
Decision Date: November 26, 2013