March 12, 2015

Ultimate Health Prods., Inc. v Travelers Ins. Co. (2015 NY Slip Op 50377(U))

Headnote

The court considered the fact that the plaintiff, a healthcare provider, failed to appear at scheduled examinations under oath (EUOs) and that the denial of claim forms had been timely mailed by the insurer. The main issue decided was whether the failure to appear at the EUOs was a condition precedent to the insurer's liability on the policy. The court held that the appearance at an EUO is indeed a condition precedent to an insurer's liability on a policy, as established in prior case law. As a result, the court granted the insurer's motion for summary judgment dismissing the complaint and denied the plaintiff's cross motion for summary judgment. The order was affirmed by the court.

Reported in New York Official Reports at Ultimate Health Prods., Inc. v Travelers Ins. Co. (2015 NY Slip Op 50377(U))

Ultimate Health Prods., Inc. v Travelers Ins. Co. (2015 NY Slip Op 50377(U)) [*1]

Ultimate Health Prods., Inc. v Travelers Ins. Co.

2015 NY Slip Op 50377(U) [47 Misc 3d 129(A)]

Decided on March 12, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 March 12, 2015

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2012-2081 Q C

Ultimate Health Products, Inc. as Assignee of FRANCISCO CHAVEZ, Appellant,
against
Travelers Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Barry A. Schwartz, J.), entered August 15, 2012. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

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

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

Contrary to plaintiff’s contentions on appeal, defendant established that plaintiff had failed to appear at either of the duly scheduled examinations under oath (EUOs) (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]) and that the denial of claim forms had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). An appearance at an EUO is a condition precedent to an insurer’s liability on a policy (see 11 NYCRR 65-1.1; Stephen Fogel Psychological, P.C., 35 AD3d 720). As a result, the court properly granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

Accordingly, the order is affirmed.

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

Decision Date: March 12, 2015