March 21, 2023

Country-Wide Ins. Co. v Alicea (2023 NY Slip Op 01474)

Headnote

The relevant facts in this case involved Country-Wide Insurance Company's motion for summary judgment declaring that they had no duty to pay no-fault claims to the defendants based on the injured party's failure to appear for examinations under oath (EUO). The main issue in this case was whether Country-Wide Insurance Company had a specific objective justification for requesting the EUO, as required by 11 NYCRR 65-3.5 (e). The court ultimately held that the motion to grant summary judgment was premature under CPLR 3212, as the insurer had failed to provide a medical provider with its objective justification for requesting the EUO. The Court also explained that the insurer's reason for the EUO was essential for medical providers to oppose an insurer's summary judgment motion, and that information was in the exclusive knowledge and control of the insurer. Therefore, the motion court's decision was reversed, the motion was denied, and the declaration and stay were vacated.

Reported in New York Official Reports at Country-Wide Ins. Co. v Alicea (2023 NY Slip Op 01474)

Country-Wide Ins. Co. v Alicea

2023 NY Slip Op 01474 [214 AD3d 530]

March 21, 2023

Appellate Division, First Department

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

As corrected through Wednesday, May 3, 2023

[*1]

Country-Wide Insurance Company, Respondent,
v
Richard Alicea et al., Defendants, and SP Orthotic Surgical & Medical Supply, Inc., et al., Appellants.

The Rybak Firm, PLLC, Brooklyn (Maksim Leyvi of counsel), for appellants.

Thomas Torto, New York, for respondent.

Order, Supreme Court, New York County (Melissa A. Crane, J.), entered August 27, 2021, which granted plaintiff Country-Wide Insurance Company’s motion for summary judgment declaring that plaintiff has no duty to defendants-appellants to pay no-fault claims based on the injured party’s failure to appear for examinations under oath (EUO), and permanently stayed any further action involving the injured party, unanimously reversed, on the law, without costs, the motion denied and the declaration and stay vacated.

Although plaintiff timely requested an EUO and subsequently issued a timely denial (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [1st Dept 2011]), the motion court erred in granting summary judgment. 11 NYCRR 65-3.5 (e) requires an EUO request be based on application of objective standards, and that the insurer must have a specific objective justification. Summary judgment is premature under CPLR 3212 where an insurer fails to provide a medical provider with its objective justification for requesting the EUO (Country-Wide Ins. Co. v Delacruz, 205 AD3d 473, 473 [1st Dept 2022]). This Court has explained that the insurer’s reason for the EUO is essential for medical providers to oppose an insurer’s summary judgment motion, and that information is in the exclusive knowledge and control of the insurer (American Tr. Ins. Co. v Jaga Med. Servs., P.C., 128 AD3d 441, 441 [1st Dept 2015]).

Plaintiff’s argument that the opposing defendants waived any objection to the reasonableness of EUO request is unavailing (Country-Wide, 205 AD3d at 474). Concur—Kapnick, J.P., Kern, Gesmer, Moulton, Higgitt, JJ.