November 13, 2015

Barakat Med. Care, P.C. v Nationwide Ins. Co. (2015 NY Slip Op 51677(U))

Headnote

The main issues in this case were whether the trial court erred in denying the defendant's motion for summary judgment seeking to dismiss a claim for $677.21 in first-party no-fault benefits. The defendant had argued that the plaintiff's assignor failed to appear for examinations under oath (EUOs), which was a condition precedent to the insurer's liability on the policy. The court held that the defendant did not need to demonstrate objective reasons for the requested EUOs as part of its prima facie showing of entitlement to judgment as a matter of law. The court reversed the trial court's decision and granted the defendant's motion for summary judgment, dismissing the claim for $677.21 in first-party no-fault benefits.

Reported in New York Official Reports at Barakat Med. Care, P.C. v Nationwide Ins. Co. (2015 NY Slip Op 51677(U))

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

Barakat Medical Care, P.C. as Assignee of LEO DONEGAN, Respondent,

against

Nationwide Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Carmen R. Velasquez, J.), entered April 12, 2013. The order, insofar as appealed from, denied the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon a claim in the sum of $677.21.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon a claim in the sum of $677.21 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 plaintiff’s assignor had failed to appear for duly scheduled examinations under oath (EUOs). Insofar as is relevant to this appeal, by order entered April 12, 2013, the Civil Court denied the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon a claim in the sum of $677.21, on the ground that defendant had failed to demonstrate that it possessed an objective basis for requesting plaintiff’s assignor to appear at an EUO.

In support of its motion, defendant submitted an affidavit from one of its special investigators, which affidavit established that the EUO scheduling letters had been timely sent to plaintiff’s assignor in accordance with defendant’s standard practices and procedures (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Defendant also annexed an affidavit from an investigator employed within defendant’s special investigations unit, and stenographic transcripts, to show that the 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]). In addition, defendant sufficiently established that the denial of claim forms had been timely mailed (see St. Vincent’s Hosp. of Richmond, 50 AD3d at 1124).

Where an insurer moves for summary judgment dismissing the complaint on the ground that a provider’s assignor failed to appear for an EUO, to establish its prima facie case, the insurer need only establish “as a matter of law that it twice duly demanded an [EUO] from the [provider’s] assignor, who had allegedly been injured in a motor vehicle accident, that the assignor twice failed to appear, and that the [insurer] issued a timely denial of the claims arising from the [provider’s] treatment of the assignor” (Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2014]). Thus, contrary to the determination of the Civil Court, defendant did not need to set forth the objective reasons for the requested EUOs as part of its prima facie showing of entitlement to judgment as a matter of law. Accordingly, since 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), the order, insofar as appealed from, is reversed and the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon a claim in the sum of $677.21 is granted.

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


Decision Date: November 13, 2015