June 11, 2010

Eagle Surgical Supply, Inc. v Utica Mut. Ins. Co. (2010 NY Slip Op 51057(U))

Headnote

The court considered the fact that the plaintiff, Eagle Surgical Supply, Inc., was seeking to recover assigned first-party no-fault benefits from the defendant, Utica Mutual Insurance Company. The main issue was whether there was coverage for the claims at issue, as the assignor had allegedly breached a condition precedent to coverage by failing to appear for two properly scheduled examinations under oath (EUOs). The Civil Court granted the defendant's motion for summary judgment and denied the plaintiff's cross motion, finding that the assignor had indeed breached a condition precedent to coverage. The holding of the case was that the EUO scheduling letters, which were sent by the defendant's counsel on behalf of the defendant, were not "nullities" because they clearly informed the assignor that counsel had been retained by defendant and that the letters were being sent on defendant's behalf. The court affirmed the decision without costs.

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)) [*1]

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This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 11, 2010

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.

Eagle Surgical Supply, Inc. a/a/o SABRYNA BREEDLOVE, Appellant,
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