June 27, 2012

Mega Supplies Billing, Inc. v State Farm Mut. Auto. Ins. Co. (2012 NY Slip Op 51269(U))

Headnote

The main issue in this case was whether the defendant, State Farm Mutual Automobile Ins. Co., was entitled to summary judgment dismissing the complaint brought by Mega Supplies Billing, Inc. as an assignee of Frederick Bianchi to recover assigned first-party no-fault benefits. The court considered whether the defendant had established that it had timely mailed examination under oath (EUO) scheduling letters and denial of claim forms. In support of its motion for summary judgment, the defendant submitted affidavits by its litigation examiner and its special investigative unit and mail room employees, which were found to be sufficient to establish that the EUO scheduling letters and denial of claim forms had been timely mailed. Since an appearance at an EUO is a condition precedent to an insurer's liability on a policy, the court affirmed the order granting the defendant's motion for summary judgment dismissing the complaint.

Reported in New York Official Reports at Mega Supplies Billing, Inc. v State Farm Mut. Auto. Ins. Co. (2012 NY Slip Op 51269(U))

Mega Supplies Billing, Inc. v State Farm Mut. Auto. Ins. Co. (2012 NY Slip Op 51269(U)) [*1]

Mega Supplies Billing, Inc. v State Farm Mut. Auto. Ins. Co.

2012 NY Slip Op 51269(U) [36 Misc 3d 129(A)]

Decided on June 27, 2012

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This opinion is uncorrected and will not be published in the printed Official Reports.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 June 27, 2012

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

PRESENT: : WESTON, J.P., PESCE and ALIOTTA, JJ
2010-2841 K C.

Mega Supplies Billing, Inc. as Assignee of FREDERICK BIANCHI, 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 (Peter Paul Sweeney, J.), entered September 8, 2010. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court granting defendant’s motion for summary judgment dismissing the complaint.

Plaintiff argues that defendant is not entitled to summary judgment because defendant failed to establish that it had timely mailed examination under oath (EUO) scheduling letters and denial of claim forms. In support of its motion for summary judgment, defendant submitted affidavits by its litigation examiner, and by its special investigative unit and mail room employees, which were sufficient to establish that the EUO scheduling letters and denial of claim [*2]forms, which denied plaintiff’s claims on the ground of plaintiff’s failure to appear for scheduled EUOs, 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]). Since 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. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]), the order is affirmed.

We note that plaintiff’s remaining contention on appeal, to the effect that defendant failed to establish plaintiff’s failure to appear at the EUOs, is not properly before this court since it is raised for the first time in plaintiff’s reply brief on appeal. In
any event, plaintiff conceded in its papers submitted in opposition to defendant’s motion that plaintiff’s nonattendance was “not in dispute.”
Weston, J.P., Pesce and Aliotta, JJ., concur.
Decision Date: June 27, 2012