June 11, 2010
Eagle Surgical Supply, Inc. v Utica Mut. Ins. Co. (2010 NY Slip Op 51057(U))
https://www.beynensonlaw.com/case-law/eagle-surgical-supply-inc-v-utica-mut-ins-co-2010-ny-slip-op51057u/
- Decided
- June 11, 2010
- Citation
- 2010 NY Slip Op 51057(U) · 27 Misc 3d 142(A)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
- Later treatment
- Followed in 1 later decision (see Cited by)
- Issues
- EUO no-show
- Legal questions
- No-show defense: insurer's proof (see the maps)
Posture, outcome, issues and treatment by other decisions are Beynenson Law’s classification. Treatment labels are assigned by a language model reading the citing decision; negative and appeal-history labels are checked by a second reader.
Summary
Editorial summary by Beynenson Law, not part of the court’s decision.
Reported in New York Official Reports at Eagle Surgical Supply, Inc. v Utica Mut. Ins. Co. (2010 NY Slip Op 51057(U))
| Eagle Surgical Supply, Inc. v Utica Mut. Ins. Co. |
| 2010 NY Slip Op 51057(U) [27 Misc 3d 142(A)] |
| Decided on June 11, 2010 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON and GOLIA, JJ
2009-1044 K C.
against
Utica Mutual Insurance Company, Respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Wavny Toussaint, J.), entered May 1, 2009. The order granted defendant’s motion for summary judgment and denied plaintiff’s cross motion for summary judgment.
ORDERED that the order 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, and plaintiff cross-moved for summary judgment. The Civil Court granted defendant’s motion and denied plaintiff’s cross motion, finding that there was no coverage for the claims at issue because the assignor had breached a condition precedent to coverage by failing to appear for two properly scheduled examinations under oath (EUOs). Plaintiff appeals from that order, and we affirm.
On appeal, plaintiff’s only contention is that the EUO scheduling letters were “nullities” because they were sent by defendant’s counsel on behalf of defendant, not by defendant directly. Plaintiff’s argument lacks merit. The letters clearly apprised the assignor that counsel had been retained by defendant and that the letters were being sent on defendant’s behalf. Accordingly, the Civil Court properly found that the assignor had breached a condition precedent to coverage, and the order is affirmed.
We reach no other issue.
Pesce, P.J., Weston and Golia, JJ., concur.
Decision Date: June 11, 2010
Legal questions
A question of no-fault law this decision rules on, from our Legal Questions pages. Bars count the decisions on the question by year and court, coloured by category; circles are this decision and the decisions on the question it cites or that cite it. Point at a bar or circle for details. The categories and summaries are Beynenson Law’s classification, made by a language model and checked by a second reading.
Did the insurer prove its IME/EUO no-show defense: mailed, compliant scheduling requests and the claimant’s nonappearance?
This decision: Insurer proved mailed, compliant requests and the nonappearance; claimant's answers rejected
Rejected the argument that EUO scheduling letters sent by the insurer's counsel were nullities, since they told the assignor counsel acted for the insurer, and upheld the finding of two missed EUOs.
Of the 858 decisions on this question in the Second Department courts and the Court of Appeals, 527 (this one included) are in the same category.
Cited by
A label shows how the later decision treated this one.
- W.H.O. Acupuncture, P.C. v Travelers Home & Mar. Ins. Co. (2012 NY Slip Op 51707(U)) FollowedThe insurer failed to schedule the first IME within 30 days of receiving two claims, defeating summary judgment on those claims.
- Utopia Equip., Inc. v ELRAC, Inc. (2017 NY Slip Op 50949(U))IME notices from a third party adequately identified the claims processor, and the doctor's affirmation proved nonappearance.
- W.H.O. Acupuncture, P.C. v Kemper Independence Ins. Co. (2012 NY Slip Op 52046(U))The provider's third-party objection to IME requests failed because the letters clearly stated they were sent on the insurer's behalf.
Similar decisions
- Eagle Surgical Supply, Inc. v New York Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 50772(U))The provider's argument that the insurer had not proved a policy provision authorizing EUOs was rejected.
- Eagle Surgical Supply, Inc. v Allstate Ins. Co. (2014 NY Slip Op 51798(U))The provider's objections to EUO requests were not heard because it did not claim to have responded to the requests.
- Eagle Surgical Supply, Inc. v Farmington Cas. Co. (2018 NY Slip Op 51642(U))The insurer's summary judgment dismissing the provider's claims for failure to attend duly scheduled EUOs was affirmed.
- Eagle Surgical Supply, Inc. v Allstate Fire & Cas. Ins. Co. (2014 NY Slip Op 50464(U))The insurer failed to establish a timely denial based on EUO nonappearance because it did not prove when it received the claims.
- Eagle Surgical Supply, Inc. v Allstate Prop. & Cas. Ins. Co. (2014 NY Slip Op 50411(U))The provider's challenges to the insurer's mailing affidavits were raised for the first time on appeal and were unpreserved.