January 5, 2017

National Med. & Surgical Supply, Inc. v ELRAC, Inc. (2017 NY Slip Op 50028(U))

Headnote

A provider sued a rental car company for assigned first-party no-fault benefits, and the Civil Court granted the defendant summary judgment based on the assignor's failure to appear for examinations under oath. The defendant's affidavits established timely mailing of the EUO scheduling letters and the denial of claim form, and affidavits from law firm receptionists established that the assignor failed to appear at either scheduled EUO. The court rejected a distinction based on whether the failure to appear occurred before or after submission of the claim form. Appearance at a duly requested EUO is a condition precedent to coverage, and the plaintiff did not claim to have responded to the requests. The Appellate Term affirmed.

Reported in New York Official Reports at National Med. & Surgical Supply, Inc. v ELRAC, Inc. (2017 NY Slip Op 50028(U))

[*1]
National Med. & Surgical Supply, Inc. v ELRAC, Inc.
2017 NY Slip Op 50028(U) [54 Misc 3d 131(A)]
Decided on January 5, 2017
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This opinion is uncorrected and will not be published in the printed Official Reports.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 January 5, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., SOLOMON and ELLIOT, JJ.
2014-2071 K C

National Medical & Surgical Supply, Inc., as Assignee of Guarionex Volcy, Appellant,

against

ELRAC, Inc., Doing Business as Enterprise Rent-A-Car, Respondent.


Appeal from an order of the Civil Court of the City of New York, Kings County (Steven Z. Mostofsky, J.), entered July 14, 2014. 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.

The affidavits submitted by defendant established that the examination under oath (EUO) scheduling letters and the denial of claim form had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Defendant also submitted affidavits from the receptionists at defense counsel’s law firm, which affidavits were sufficient to establish that plaintiff’s assignor 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]).

Contrary to plaintiff’s assertion, there is no basis for a distinction between defendant’s contractual remedies when “the failure to appear for [EUOs] occurs before the submission of the claim form or after its submission” (id. at 722). The appearance of a provider’s assignor at a duly requested EUO is a condition precedent to an insurer’s liability on a policy (see 11 NYCRR 65-1.1; Stephen Fogel Psychological, P.C., 35 AD3d at 722), and plaintiff does not claim to have responded in any way to the EUO requests. Therefore, plaintiff’s objections regarding the EUO requests will not now be heard (see Viviane Etienne Med. Care, P.C. v State Farm Mut. Auto. Ins. Co., 35 Misc 3d 127[A], 2012 NY Slip Op 50579[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]; Crescent Radiology, PLLC v American Tr. Ins. Co., 31 Misc 3d 134[A], 2011 NY Slip Op 50622[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2011]).

Accordingly, the order is affirmed.

Pesce, P.J., Solomon and Elliot, JJ., concur.


Decision Date: January 05, 2017

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