Dream Acupuncture, P.C. v State Farm Fire & Cas. Co. (2013 NY Slip Op 51997(U))

Dream Acupuncture, P.C. v State Farm Fire & Cas. Co.

2013 NY Slip Op 51997(U) [41 Misc 3d 139(A)]

Decided on November 26, 2013

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This opinion is uncorrected and will not be published in the printed Official Reports.

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

Dream Acupuncture, P.C. as Assignee of CARLOS GAUSE, Appellant, —

against

State Farm Fire & Casualty Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered March 11, 2011. The order granted defendant's motion for summary judgment dismissing the complaint.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint, alleging that the claims at issue had been timely denied based upon plaintiff's failure to appear at properly scheduled examinations under oath (EUOs). Plaintiff appeals from an order of the Civil Court which granted defendant's motion.

Contrary to plaintiff's first argument on appeal, defendant's affidavits sufficiently described defendant's standard practices and procedures for mailing EUO scheduling letters and denial of claim forms (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). [*2]

Contrary to plaintiff's other argument on appeal, it was not defendant's burden to demonstrate that the applicable policy condition contains a provision for using EUOs as a method of verifying claims. As we have previously noted, effective April 5, 2002, the mandatory personal injury endorsement contains a provision for EUOs (see Insurance Department Regulations [11 NYCRR] § 65-1.1 [b]). The accident in question occurred on February 9, 2007. Since the policy in this case would have been issued after 2002, it would necessarily have contained a provision for EUOs, and, thus, defendant was not required to produce the policy to establish the existence of such a provision (see Mega Supplies Billing, Inc. v State Farm Mut. Auto. Ins. Co., 33 Misc 3d 136[A], 2011 NY Slip Op 52023[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; Eagle Chiropractic, P.C. v Chubb Indem. Ins. Co., 19 Misc 3d 129[A], 2008 NY Slip Op 50525[U] [App Term, 9th & 10th Jud Dists 2008]). Indeed, "[e]ven if the insurance policy did not contain an EUO provision, the policy would be construed as though it did" (Mega Supplies Billing, Inc., 33 Misc 3d 136[A], 2011 NY Slip Op 52023[U], *1).