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Flow Chiropractic, P.C. v Travelers Home & Mar. Ins. Co.
2014 NY Slip Op 51142(U) [44 Misc 3d 132(A)]
Decided on July 7, 2014
Appellate Term, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law ยง 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on July 7, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS

PRESENT: : IANNACCI, J.P., MARANO and GARGUILO, JJ.
2012-2432 N C

Flow Chiropractic, P.C. as Assignee of MIKHAIL SHIPLEV, Appellant,

against

Travelers Home and Marine Insurance Company, Respondent.


Appeal from an order of the District Court of Nassau County, First District (Terence P. Murphy, J.), dated September 25, 2012. The order granted defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the District Court which granted defendant's motion for summary judgment dismissing the complaint. The District Court found that defendant had timely and properly denied the claims at issue on the ground that plaintiff had failed to comply with a condition precedent to coverage, in that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs). On appeal, plaintiff argues that defendant lacked justification for its EUO requests and that the document demands contained in the EUO requests were palpably improper.

An appearance at an EUO "is a condition precedent to the insurer's liability on the policy" (Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 722 [2006]). Plaintiff's contention that defendant was not entitled to summary judgment because defendant had failed to set forth any objective standards for requesting the EUOs lacks merit. No "provision of No-Fault Regulations 68 requires an insurer's notice of scheduling an EUO to specify the reason(s) why the insurer is requiring the EUOs" (2006 Ops Ins Dept No. 06-12-16 [http://www.dfs.ny.gov/insurance/ogco2006/rg061216.htm]).


Moreover, the Insurance Department interpretation of the Regulations "is entitled to deference unless irrational or unreasonable" (Stephen Fogel Psychological, P.C.,


35 AD3d at 722 [internal quotation marks omitted]). As plaintiff does not allege, let alone establish, that it or its assignor responded in any way to defendant's EUO requests, plaintiff's remaining objections regarding the EUO requests will not now be heard (see Crescent Radiology, PLLC v American Tr. Ins. Co., 31 Misc 3d 134[A],


2011 NY Slip Op 50622[U] [App Term, 9th & 10th Jud Dists 2011]). Moreover,


the opposing affirmation submitted by plaintiff's counsel was insufficient to


raise a triable issue of fact in opposition to defendant's motion. Consequently, defendant's motion was properly granted.

Accordingly, the order is affirmed.

Iannacci, J.P., Marano and Garguilo, JJ., concur.


Decision Date: July 07, 2014