Crotona Hgts. Med., P.C. v Farm Family Cas. Ins. Co. (2010 NY Slip Op 50716(U))

Crotona Hgts. Med., P.C. v Farm Family Cas. Ins. Co.

2010 NY Slip Op 50716(U) [27 Misc 3d 134(A)]

Decided on April 16, 2010

Appellate Term, Second Department

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

As corrected in part through November 4, 2011; it will not be published in the printed Official Reports.

Crotona Heights Medical, P.C. as assignee of EDWIN TORIBIO, Respondent,

against

Farm Family Casualty Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered April 28, 2008. The order, insofar as appealed from, denied defendant's cross motion for summary judgment.

ORDERED that the order, insofar as appealed from, is reversed without costs and defendant's cross motion for summary judgment dismissing the complaint is granted.

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. The Civil Court denied both the motion and the cross motion. Insofar as is relevant to this appeal, the Civil Court found that defendant had established that it had timely and properly denied the claims at issue after requesting that plaintiff appear for an examination under oath (EUO), and held that "the sole issue remaining to be determined at trial is the EUO no-show as a proper basis of denial" (see CPLR 3212 [g]). Defendant appeals from so much of the order as denied its cross motion for summary judgment.

In opposition to plaintiff's motion and in support of its cross motion for summary judgment, defendant submitted the affirmation of a partner in the law firm retained by defendant to conduct plaintiff's EUO. Counsel alleged facts sufficient to establish that plaintiff had failed to appear at counsel's law office for duly scheduled EUOs (see 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]; see also Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). The appearance of the eligible injured person's assignee at an EUO upon a proper request 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 [*2]722; W & Z Acupuncture, P.C., 24 Misc 3d 142[A], 2009 NY Slip Op 51732[U]).

In light of the foregoing, and the Civil Court's CPLR 3212 (g) findings that the EUO requests were mailed and that the claims were timely denied, from which no appeal has been taken by plaintiff, the Civil Court should have granted defendant's cross motion for summary judgment dismissing the complaint.