October 27, 2011

Richmond Radiology, P.C. v American Tr. Ins. Co. (2011 NY Slip Op 52012(U))

Headnote

The main issue in the case was whether the defendant had established that the plaintiff's assignor had failed to appear for scheduled examinations under oath (EUOs). The court considered the affidavit of the defendant's investigator, which established that the plaintiff's assignor had indeed failed to appear for the scheduled EUOs. The holding of the case was that since an appearance at an EUO is a condition precedent to the insurer's liability on the policy, and the defendant had established that the plaintiff's assignor had failed to appear for the EUOs, the judgment denying the plaintiff's motion for summary judgment and granting the defendant's cross motion for summary judgment dismissing the complaint was affirmed. The case was decided by the Appellate Term, Second Department.

Reported in New York Official Reports at Richmond Radiology, P.C. v American Tr. Ins. Co. (2011 NY Slip Op 52012(U))

Richmond Radiology, P.C. v American Tr. Ins. Co. (2011 NY Slip Op 52012(U)) [*1]

Richmond Radiology, P.C. v American Tr. Ins. Co.

2011 NY Slip Op 52012(U) [33 Misc 3d 135(A)]

Decided on October 27, 2011

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This opinion is uncorrected and will not be published in the printed Official Reports.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 27, 2011

SUPREME COURT OF THE STATE OF NEW YORK

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

PRESENT: : PESCE, P.J., WESTON and RIOS, JJ
2010-1035 Q C.

Richmond Radiology, P.C. as Assignee of LEA PEREZ, Appellant,
against
American Transit Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Judi Orlow, J.), entered March 11, 2010, deemed from a judgment of the same court entered April 2, 2010 (see CPLR 5512 [a]; Neuman v Otto, 114 AD2d 791 [1985]). The judgment, entered pursuant to the March 11, 2010 order denying plaintiff’s motion for summary judgment and granting defendant’s cross motion for summary judgment dismissing the complaint, awarded defendant the sum of $60.

ORDERED that the judgment is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order denying its motion for summary judgment and granting defendant’s cross motion for summary judgment dismissing the complaint. We deem plaintiff’s appeal to be from the judgment entered pursuant to the order (see CPLR 5512 [a]; Neuman v Otto, 114 AD2d 791 [1985]).

Plaintiff’s sole argument on appeal is that defendant did not establish that plaintiff’s assignor had failed to appear for examinations under oath (EUOs). However, a review of the record reveals that the affidavit of defendant’s investigator, who was responsible for conducting the EUOs, established that plaintiff’s assignor had failed to appear for the 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]; W & Z Acupuncture, P.C. v Amex Assur. Co., 24 Misc 3d 142[A], 2009 NY Slip Op 51732[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). Since an appearance at an EUO is a condition precedent to the insurer’s liability on the policy (see Insurance Department Regulations [11 NYCRR] § 65—1.1; Stephen Fogel Psychological, P.C., 35 AD3d at 722), the judgment is affirmed.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: October 27, 2011