Excel Imaging, P.C. v Allstate Ins. Co. (2015 NY Slip Op 51896(U))

Appeal from an order of the District Court of Nassau County, Third District (Fred J. Hirsh, J.), dated April 10, 2013. The order, insofar as appealed from, denied defendant’s motion for summary judgment dismissing the complaint.

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 denied the claim at issue based upon the assignor’s alleged failure to appear at duly scheduled examinations under oath (EUOs). Defendant moved for summary judgment dismissing the complaint on the ground that, by failing to appear at the EUOs, plaintiff’s assignor had failed to comply with a condition precedent to coverage. Plaintiff cross-moved for summary judgment. Defendant appeals from so much of an order of the District Court as denied defendant’s motion.

On this record, we find that there is an issue of fact as to whether plaintiff’s assignor failed to comply with a condition precedent to coverage (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). An assignor’s appearance at a scheduled EUO “is a condition precedent to the insurer’s liability on the policy” (Stephen Fogel Psychological, P.C., 35 AD3d at 722). Here, defendant alleges that plaintiff’s assignor failed to appear for duly scheduled EUOs on January 28 and February 24, 2011. However, the papers submitted in support of defendant’s motion included a letter from defendant, dated February 7, 2011, which indicated that plaintiff had requested an adjournment of the January 28, 2011 date. At oral argument, defendant’s counsel conceded that this request was made before January 28, 2011, but he did not indicate whether or not there had been a mutual rescheduling prior to that date (see e.g. Five Boro Psychological Services, P.C. v Utica Mut. Ins. Co., 41 Misc 3d 140[A], 2013 NY Slip Op 52005[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013] [a mutual rescheduling, which occurs prior to the date of a scheduled EUO, does not constitute a failure to appear]; DVS Chiropractic, P.C. v Interboro Ins. Co., 36 Misc 3d 138[A], 2012 NY Slip Op 51443[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]; Vitality Chiropractic, P.C. v Kemper Ins. Co., 14 Misc 3d 94 [App Term, 2d Dept, 2d & 11th Jud Dists 2006]).

Even absent a prior mutual agreement to reschedule, there may be other reasons why plaintiff’s assignor should not be considered to have failed to appear for the January 28, 2011 appointment (see Avicenna Med. Arts, P.L.L.C. v Ameriprise Auto & Home, 47 Misc 3d 145[A], 2015 NY Slip Op 50701[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). [*2]However, the record does not reveal the surrounding circumstances, for example, when exactly plaintiff requested the adjournment or when or how defendant responded. Without such details, we cannot determine the reasonableness and/or timeliness of each party’s conduct. Therefore, we cannot determine if plaintiff’s assignor should be deemed to have failed to appear on January 28, 2011 and, thus, whether there was a failure to comply with a condition precedent to coverage.

Accordingly, the order, insofar as appealed from, is affirmed.

Tolbert, J.P., Marano and Garguilo, JJ., concur.