March 15, 2016

Ultimate Health Prods., Inc. v American Tr. Ins. Co. (2016 NY Slip Op 50330(U))

Headnote

The main issue in this case was whether the insurance company had properly denied a claim for first-party no-fault benefits based on the plaintiff's assignor's failure to appear for examinations under oath (EUOs). The court held that the insurance company had timely mailed the EUO scheduling letters and that the plaintiff's assignor had failed to comply with the scheduled EUOs. Since the insurance company had timely denied the claim on the ground of the assignor's failure to appear for the EUOs, they had demonstrated that the assignor failed to comply with a condition precedent to coverage. The court denied the plaintiff's motion for summary judgment and granted the defendant's cross motion for summary judgment dismissing the complaint. Therefore, the order was affirmed.

Reported in New York Official Reports at Ultimate Health Prods., Inc. v American Tr. Ins. Co. (2016 NY Slip Op 50330(U))

Ultimate Health Prods., Inc. v American Tr. Ins. Co. (2016 NY Slip Op 50330(U)) [*1]

Ultimate Health Prods., Inc. v American Tr. Ins. Co.

2016 NY Slip Op 50330(U) [50 Misc 3d 148(A)]

Decided on March 15, 2016

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This opinion is uncorrected and will not be published in the printed Official Reports.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 March 15, 2016

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

PRESENT: : PESCE, P.J., ALIOTTA and ELLIOT, JJ.
2013-1479 Q C

Ultimate Health Products, Inc. as Assignee of Tamezan Osmali, Appellant,
against
American Transit Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Barry A. Schwartz, J.), entered May 10, 2013. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross 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 moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint on the ground that it had timely and properly denied the claim based on plaintiff’s assignor’s failure to appear for examinations under oath (EUOs). The Civil Court denied plaintiff’s motion and granted defendant’s cross motion.

Contrary to plaintiff’s contention, defendant established that the EUO scheduling letters had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) and that plaintiff’s assignor had failed to appear for the duly scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Since defendant had timely denied (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123) the claim on the ground that plaintiff’s assignor had failed to appear for duly scheduled EUOs, defendant demonstrated that plaintiff’s assignor had failed to comply with a condition precedent to coverage (see Stephen Fogel Psychological, P.C., 35 AD3d at 722). As plaintiff, in opposition, failed to raise a triable issue of fact, defendant was entitled to summary judgment dismissing the complaint.

Accordingly, the order is affirmed.

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

Decision Date: March 15, 2016