May 6, 2013

Five Boro Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co. (2013 NY Slip Op 50753(U))

Headnote

The court considered the denial of the plaintiff's motion for summary judgment and the granting of the defendant's cross motion for summary judgment in a case involving a provider seeking to recover assigned first-party no-fault benefits from an insurance company. The main issue decided was whether the examination under oath scheduling letters and denial of claim form had been timely mailed, and whether the plaintiff had failed to appear at the scheduled examinations under oath. The court found that the affidavits submitted by the defendant established that the scheduling letters and denial of claim form had been timely mailed, and that the plaintiff had failed to appear at the scheduled examinations under oath, which was a condition precedent to the insurer's liability on the policy. The judgment was affirmed in favor of the defendant insurance company.

Reported in New York Official Reports at Five Boro Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co. (2013 NY Slip Op 50753(U))

Five Boro Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co. (2013 NY Slip Op 50753(U)) [*1]

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

2013 NY Slip Op 50753(U) [39 Misc 3d 141(A)]

Decided on May 6, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 May 6, 2013

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., RIOS and SOLOMON, JJ
2011-629 K C.

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered June 25, 2010, deemed from a judgment of the same court entered October 27, 2010 (see CPLR 5501 [c]). The judgment, entered pursuant to the June 25, 2010 order denying plaintiff’s motion for summary judgment and granting defendant’s cross motion for summary judgment, dismissed the complaint.

ORDERED that the judgment is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which denied its motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

Contrary to plaintiff’s contentions on appeal, the affidavits submitted by defendant established that the examination under oath (EUO) scheduling letters and the denial of claim [*2]form had been timely mailed (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]), and 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]). 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 720). In view of the foregoing, and as plaintiff’s remaining contentions lack merit, the judgment is affirmed.

Pesce, P.J., Rios and Solomon, JJ., concur.
Decision Date: May 06, 2013