October 20, 2010

Lde Med. Servs., P.C. v Encompass Ins. (2010 NY Slip Op 51845(U))

Headnote

The main issues in the case were whether a provider could recover assigned first-party no-fault benefits when the assignor had failed to appear at duly scheduled examinations under oath (EUOs), and whether the appearance at an EUO was a condition precedent to an insurer's liability on the policy. The court considered the affirmation submitted by the associate of the law firm retained by the defendant, which established that the plaintiff's assignor had failed to appear at the EUOs. The court held that appearance at an EUO is a condition precedent to an insurer's liability on the policy, and since the assignor had failed to appear, the judgment in favor of the plaintiff was reversed, the order granting the plaintiff's motion for summary judgment was vacated, and the plaintiff's motion was denied.

Reported in New York Official Reports at Lde Med. Servs., P.C. v Encompass Ins. (2010 NY Slip Op 51845(U))

Lde Med. Servs., P.C. v Encompass Ins. (2010 NY Slip Op 51845(U)) [*1]

Lde Med. Servs., P.C. v Encompass Ins.

2010 NY Slip Op 51845(U) [29 Misc 3d 130(A)]

Decided on October 20, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 October 20, 2010

SUPREME COURT OF THE STATE OF NEW YORK

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

PRESENT: : PESCE, P.J., RIOS and STEINHARDT, JJ
2009-1401 Q C.

LDE Medical Services, P.C. as Assignee of Kerron Alexander, Respondent,
against
Encompass Insurance, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered June 2, 2009, deemed from a judgment of the same court entered June 19, 2009 (see CPLR 5501 [c]). The judgment, entered pursuant to the June 4, 2009 order granting plaintiff’s motion for summary judgment, awarded plaintiff the principal sum of $1,446.67.

ORDERED that the judgment is reversed without costs, the order granting plaintiff’s motion for summary judgment is vacated and plaintiff’s motion for summary judgment is denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant opposed the motion on the ground that plaintiff’s assignor had failed to appear at duly scheduled examinations under oath
(EUOs). The Civil Court granted plaintiff’s motion for summary judgment, and this appeal by defendant ensued. A judgment was subsequently entered, from which the appeal is deemed to be taken (see CPLR 5501 [c]).

Defendant submitted an affirmation of an associate of the law firm retained by defendant to conduct the EUOs. The affirmation set forth facts sufficient to establish that plaintiff’s assignor had failed to appear at the affirmant’s law office for duly scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; 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]). Since appearance at an EUO is a condition precedent to an insurer’s liability on the policy (see Insurance Department Regulations [11 NYCRR] § 65-1.1; [*2]Stephen Fogel Psychological, P.C., 35 AD3d at 722), the judgment is reversed, the order granting plaintiff’s motion for summary judgment is vacated and plaintiff’s motion is denied.

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: October 20, 2010