June 24, 2013

New Century Med. Diagnostics, P.C. v Utica Mut. Ins. Co. (2013 NY Slip Op 23204)

Headnote

The case involves a dispute between New Century Medical Diagnostics, P.C. and Utica Mutual Insurance Company over no-fault benefits. New Century submitted its claims on time, but Utica denied the claims because New Century did not appear at two scheduled examinations under oath, which is considered a failure to comply with a condition precedent to coverage. New Century argued that the notices for the examinations were defective because they sought the production of a specific individual, but the court held that New Century's failure to appear at the scheduled examinations permitted Utica to deny the claims. The court granted Utica's motion for summary judgment, dismissing the complaint. The decision was based on the fact that while New Century was not required to produce the specific person Utica requested, its failure to produce any person at the scheduled examinations under oath allowed Utica to deny New Century's claims.

Reported in New York Official Reports at New Century Med. Diagnostics, P.C. v Utica Mut. Ins. Co. (2013 NY Slip Op 23204)

New Century Med. Diagnostics, P.C. v Utica Mut. Ins. Co.

2013 NY Slip Op 23204 [40 Misc 3d 788]

June 24, 2013

d’Auguste, J.

Civil Court Of The City Of New York, New York County

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected through Tuesday, October 8, 2013

[*1]

New Century Medical Diagnostics, P.C., as Assignee of Diana Raphael and Others, Plaintiff,
v
Utica Mutual Insurance Company, Defendant.

Civil Court of the City of New York, New York County, June 24, 2013

APPEARANCES OF COUNSEL

Dodge & Monroy, P.C., Melville, for defendant. Baker, Sanders, Barshay, Grossman, Fass, Muhlstock & Neuwirth, LLC, Garden City, for plaintiff.

{**40 Misc 3d at 788} OPINION OF THE COURT

James E. d’Auguste, J.

Defendant Utica Mutual Insurance Company seeks summary judgment dismissing plaintiff New Century Medical Diagnostics, P.C.’s no-fault benefits action.

The parties’ submissions demonstrate that New Century timely submitted its claims and Utica timely denied the claims{**40 Misc 3d at 789} based upon New Century’s failure to appear at two scheduled examinations under oath. Defaulting in appearing at properly scheduled examinations under oath [*2]represents a failure to comply with a condition precedent to coverage. (Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559 [1st Dept 2011]; Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2d Dept 2006].) New Century has not denied its nonappearance, but asserts that the notices were defective because they sought the production of a specific individual. In advancing this argument, New Century relies upon a New York State Insurance Department^[FN*] opinion letter holding that a no-fault medical provider can produce any individual with personal knowledge at a scheduled examination under oath. (Ops Gen Counsel NY Ins Dept No. 09-06-10 [June 2009, Alexander Tisch, Esq.].) The Insurance Department, however, did not opine that an insurer’s attempt to secure the production of a particular person renders the entire verification request a nullity. Rather, the opinion letter merely holds that a no-fault provider is permitted to designate any individual with knowledge irrespective of an insurer’s demand that a specific individual appear. Thus, while New Century was not required to produce the specific person Utica requested, its failure to produce any person at the scheduled examinations under oath permitted Utica to deny New Century’s claims.

Accordingly, Utica’s motion for summary judgment dismissing the complaint is granted.

Footnotes

Footnote *: The Insurance Department is now a part of the Department of Financial Services.