A bench trial was commenced and completed on November 13, 2017. In this action by a provider to recover assigned first-party no-fault benefits, the burden was on Defendant to show timely mailing of the notices of examinations under oath and the failure of the assignor to attend the scheduled examinations under oaths.

When an issue involves an examination under oath, a defendant must prove that its examinations under oath requests were timely mailed and that a plaintiff's assignor failed to appear for same (see Crescent Radiology, PLLC v American Transit Ins. Co., 31 Misc 3d 134[A] [App Term 2d Dept 2011]). When a party who is required to appear fails to attend a scheduled examination under oath, the insurer must contact the party within 10 days in order to afford the party a second opportunity to attend an examination under oath. (11 NYCRR 65-3.6[b]). If the party fails to appear at the rescheduled examination under oath, an insurer may issue a denial of pending claims based upon the failure to meet the condition for coverage.

It is well settled that an appearance at an examination under oath or independent medical examination "is a condition precedent to the insurer's liability on the policy" and an insurer can deny a claim retroactively to the date of loss for a claimant's failure to attend an examination under oath (Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 722 [App Div 2d Dept 2006] quoting 11 NYCRR 65-1.1).

Defendant presented Richard Steigman Esq., an attorney who testified regarding the preparation and mailing procedures in his office for examinations under oath and the requested examinations under oath in this case. He testified that the first examination under oath request was mailed on March 21, 2011 and requested the appearance of the assignor for an examination under oath on April 14, 2011. Mr. Steigman, however, admitted that, prior to April 14, 2011, [*2]someone in his office informed him that the assignor was not able to appear for the examination under oath, so Mr. Steigman did not appear. Mr. Steigman testified that, thereafter, his office sent a second request for an examination under oath on April 18, 2011 requesting that the assignor appear on May 5, 2011. He further testified that, when he appeared on May 5, 2011, the assignor failed to appear. That day, he placed a statement on the record. Defendant presented that statement into evidence during the trial.

The court finds credible the testimony of Richard Steigman Esq. regarding the preparation and mailing of the scheduling letters. However, given that Mr. Steigman testified that he was informed that the assignor would be unable to appear for the first scheduled examination under oath, the examination under oath should have been rescheduled. As such, the assignor's inability to appear on April 14, 2011 does not constitute a "failure to appear." Plaintiff's "no show" on May 5, 2011 constituted his first "failure to appear," and Defendant should have followed up with a second request for an examination under oath as required pursuant to 11 NYCRR 65-3.6. Therefore, judgment is awarded in favor of Plaintiff. The Clerk is directed to enter judgment in favor of Plaintiff in the amount of $1,819.12 together with applicable statutory interest, attorney fees and costs.

This constitutes the Decision and Order of the Court.