October 11, 2011

Five Boro Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co. (2011 NY Slip Op 51846(U))

Headnote

The court considered the fact that the plaintiff, a medical service provider, was seeking to recover no-fault benefits from the defendant, an insurance company, but had failed to appear for an examination under oath (EUO) as required by the defendant. The main issue decided was whether the defendant's EUO scheduling letters were sufficient and whether the plaintiff's failure to appear at the EUOs was a valid reason for the defendant to deny the claim. The court held that the defendant's EUO scheduling letters and the denial of claim form were timely mailed, and the plaintiff's failure to appear at the scheduled EUOs was a valid reason for the defendant to deny the claim. Therefore, the order granting the plaintiff's motion for summary judgment was reversed, and the defendant's cross motion for summary judgment dismissing the complaint was granted.

Reported in New York Official Reports at Five Boro Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co. (2011 NY Slip Op 51846(U))

Five Boro Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co. (2011 NY Slip Op 51846(U)) [*1]

Five Boro Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co.

2011 NY Slip Op 51846(U) [33 Misc 3d 128(A)]

Decided on October 11, 2011

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected in part through November 4, 2011; it will not be published in the printed Official Reports.

Decided on October 11, 2011

SUPREME COURT OF THE STATE OF NEW YORK

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

PRESENT: : PESCE, P.J., RIOS and STEINHARDT, JJ
2009-2204 K C.

Five Boro Psychological Services, P.C. as Assignee of CHRISTINA DESTEFANO, Respondent,
against
State Farm Mutual Automobile Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered September 3, 2009. The order granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, without costs, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint. Defendant argued that it had timely denied plaintiff’s claim based upon the failure of plaintiff’s owner to appear for an examination under oath (EUO). The Civil Court granted plaintiff’s motion and denied defendant’s cross motion for summary judgment, finding that defendant’s EUO scheduling letters were insufficient.

The affidavits submitted by defendant established that the EUO scheduling letters and the denial of claim form were timely mailed in accordance with its 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 submitted an affirmation from one of the attorneys who was responsible for conducting the EUOs at issue, which established that plaintiff had failed to appear at either of the duly scheduled 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]). [*2]Such an appearance at an EUO is a condition precedent to an insurer’s liability on a policy (see Insurance Department Regulations [11 NYCRR] § 65-1.1; Stephen Fogel Psychological, P.C., 35 AD3d at 722; Crotona Hgts. Med., P.C. v Farm Family Cas. Ins. Co., 27 Misc 3d 134[A], 2010 NY Slip Op 50716[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). Furthermore, contrary to the Civil Court’s determination, there is no requirement that EUO scheduling letters conspicuously highlight the information contained therein (see Insurance Department Regulations [11 NYCRR] § 65-3.5 [b], [e]). Accordingly, the order is reversed, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted.

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: October 11, 2011