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Metro Psychological Servs., P.C. v 21st Century N. Am. Ins. Co.
2015 NY Slip Op 50470(U) [47 Misc 3d 133(A)]
Decided on April 7, 2015
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This opinion is uncorrected and will not be published in the printed Official Reports.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 April 7, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS

PRESENT: : TOLBERT, J.P., GARGUILO and CONNOLLY, JJ.
2013-2295 N C

Metro Psychological Services, P.C. as Assignee of CHRISTINA DAVIS, Respondent,

against

21st Century North America Insurance Company, Appellant.


Appeal from an order of the City Court of Long Beach, Nassau County (Frank D. DiKranis, J.), entered March 20, 2013. The order denied defendant's motion for summary judgment dismissing the complaint.

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

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that it


had timely denied plaintiff's claim based on the assignor's failure to appear at scheduled examinations under oath (EUOs). The City Court found that defendant established that it had timely mailed the EUO scheduling letters, that the date and place of the EUOs were not unreasonable and that plaintiff's assignor had failed to appear for the EUOs. However, the court held that defendant did not establish its prima facie entitlement to judgment as a matter of law because it did not show an objective justification for scheduling the EUOs. This appeal by defendant ensued.

In support of its motion for summary judgment dismissing the complaint, defendant submitted an affidavit of its counsel's paralegal, who was responsible for creating EUO scheduling letters and who had personally mailed the letters. The affidavit established that the EUO notices had been sent to plaintiff's assignor in accordance with the law office's standard practices and procedures (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Richard Morgan Do, P.C. v State Farm Mut. Auto. Ins. Co., 22 Misc 3d 134[A], 2009 NY Slip Op 50242[U] [App Term, 9th & 10th Jud Dists 2009]; Chi Acupuncture, P.C. v Kemper Auto & Home Ins. Co., 14 Misc 3d 141[A], 2007 NY Slip Op 50352[U] [App Term, 9th & 10th Jud Dists 2007]). Defendant also proffered transcripts of the scheduled EUOs, which established that the assignor had failed to appear (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). In addition, defendant sufficiently established that the denial of claim form had been timely mailed (see St. Vincent's Hosp. of Richmond, 50 AD3d at 1124). The opposing affirmation submitted by plaintiff's counsel was insufficient to raise a triable issue of fact in opposition to defendant's motion.

An appearance at an EUO "is a condition precedent to the insurer's liability on the policy" (Stephen Fogel Psychological, P.C., 35 AD3d at 722). Contrary to the determination of the City [*2]Court, no provision of No-Fault Regulation 68 requires an insurer to set forth any objective standards for requesting an EUO (see Flow Chiropractic, P.C. v Travelers Home and Mar. Ins. Co., 44 Misc 3d 132[A], 2014 NY Slip Op 51142[U] [App Term, 9th & 10th Jud Dists 2014]).

Accordingly, the order is reversed and defendant's motion for summary judgment dismissing the complaint is granted.

Tolbert, J.P., Garguilo and Connolly, JJ., concur.


Decision Date: April 07, 2015