April 1, 2022

July, P.T., P.C. v Metropolitan Group Prop. & Cas. Ins. (2022 NY Slip Op 50302(U))

Headnote

The relevant facts that the court considered were that the plaintiff, a medical provider, was seeking to recover first-party no-fault benefits on behalf of an assignor who had failed to appear for examinations under oath (EUOs) as required by the insurance company. The main issue decided by the court was whether the assignor's failure to appear at the EUOs constituted a failure to comply with a condition precedent to coverage. The holding of the court was that the defendant's motion for summary judgment dismissing the complaint was granted, as the evidence presented by the defendant, including an affidavit and certified transcripts of the EUOs, demonstrated that the assignor had failed to appear for the EUOs, thereby failing to comply with a condition precedent to coverage. As a result, the order was affirmed by the court.

Reported in New York Official Reports at July, P.T., P.C. v Metropolitan Group Prop. & Cas. Ins. (2022 NY Slip Op 50302(U))

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

July, P.T., P.C., as Assignee of Kevon Benfield, Appellant,
against
Metropolitan Group Property and Casualty Ins., Respondent.

Kopelevich & Feldsherova, P.C. (David Landfair of counsel), for appellant. Bruno, Gerbino, Soriano & Aitken, LLP (Susan B. Eisner of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Matthew P. Blum, J.), entered March 10, 2020. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order 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 granted defendant’s motion for summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for duly scheduled examinations under oath (EUOs).

Contrary to plaintiff’s sole contention on appeal, the affidavit by defendant’s special investigator who was scheduled to conduct the EUOs, accompanied by certified transcripts of the EUOs, established that the assignor had failed to appear at either of the EUOs (see Pavlova v Nationwide Ins., 70 Misc 3d 144[A], 2021 NY Slip Op 50213[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]; TAM Med. Supply Corp. v 21st Century Ins. Co., 57 Misc 3d 149[A], 2017 NY Slip Op 51510[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; Atlantic Radiology Imaging, P.C. v Metropolitan Prop. & Cas. Ins. Co., 50 Misc 3d 147[A], 2016 NY Slip Op 50321[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]), thereby demonstrating that plaintiff’s assignor had failed to comply with a condition precedent to coverage (see 11 NYCRR 65-1.1; Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 722 [2006]).

Accordingly, the order is affirmed.

ALIOTTA, P.J., WESTON and BUGGS, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: April 1, 2022