November 20, 2015

Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co. (2015 NY Slip Op 51711(U))

Headnote

The court considered the fact that plaintiff, Delta Diagnostic Radiology, P.C., was seeking to recover first-party no-fault benefits as the assignee of YVAN PLETEAU. Plaintiff moved for summary judgment, while defendant cross-moved for summary judgment dismissing the complaint on the basis that the claims were denied due to the assignor's failure to appear for examinations under oath (EUOs). The main issue decided was whether the defendant had timely and properly denied the claims based on the assignor's failure to appear for EUOs. The court held that the defendant had established that the EUO scheduling letters had been timely mailed and that the assignor failed to appear for the scheduled EUOs, demonstrating a failure to comply with a condition precedent to coverage. As a result, the defendant was entitled to summary judgment dismissing the complaint, and the order was affirmed.

Reported in New York Official Reports at Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co. (2015 NY Slip Op 51711(U))

Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co. (2015 NY Slip Op 51711(U)) [*1]

Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co.

2015 NY Slip Op 51711(U) [49 Misc 3d 149(A)]

Decided on November 20, 2015

Appellate Term, Second Department

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

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 20, 2015

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-745 Q C

Delta Diagnostic Radiology, P.C. as Assignee of YVAN PLETEAU, Appellant,
against
American Transit Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Larry Love, J.), entered March 4, 2013. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with $25 costs.

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 on the ground that it had timely and properly denied the claims based on plaintiff’s assignor’s failure to appear for examinations under oath (EUOs). The Civil Court denied plaintiff’s motion and granted defendant’s cross motion.

Contrary to plaintiff’s contention, defendant established that the EUO scheduling letters had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]), and that plaintiff’s assignor had failed to appear for the duly scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Thus, defendant demonstrated that plaintiff’s assignor had failed to comply with a condition precedent to coverage (id. at 722). As defendant timely denied (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123) the claims on the ground that plaintiff’s assignor had failed to appear for duly scheduled EUOs, and as plaintiff’s remaining contentions lack merit, defendant was entitled to summary judgment dismissing the complaint.

Accordingly, the order is affirmed.

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Decision Date: November 20, 2015