September 15, 2015

National Liab. & Fire Ins. Co. v Tam Med. Supply Corp. (2015 NY Slip Op 06763)

Headnote

The court considered the motion for summary judgment brought by the plaintiff, a no-fault insurer, to declare that its policy does not provide coverage to the individual defendant for a specific accident due to her failure to appear for scheduled examinations under oath (EUO). The defendants argued that the plaintiff had not established that it had requested the EUO within the time frame set by the no-fault regulations. In response, the plaintiff failed to supply evidence bearing on whether the EUO had been requested within the appropriate time frame. The main issue decided by the court was whether the plaintiff had properly requested the EUO within the time frame set by the no-fault regulations in order to deny coverage. The holding of the case was that the plaintiff's motion for summary judgment was properly denied because it failed to supply evidence showing that the EUO had been requested within the appropriate time frame.

Reported in New York Official Reports at National Liab. & Fire Ins. Co. v Tam Med. Supply Corp. (2015 NY Slip Op 06763)

National Liab. & Fire Ins. Co. v Tam Med. Supply Corp.

2015 NY Slip Op 06763 [131 AD3d 851]

September 15, 2015

Appellate Division, First Department

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

As corrected through Wednesday, November 4, 2015

[*1]

National Liability & Fire Insurance Company, Appellant,
v
Tam Medical Supply Corp. et al., Respondents, et al., Defendants.

The Law Office of Jason Tenenbaum, P.C., Garden City (Jason Tenenbaum of counsel), for appellant.

The Rybak Firm, PLLC, Brooklyn (Damin J. Toell of counsel), for respondents.

Order, Supreme Court, New York County (Manuel J. Mendez, J.), entered October 20, 2014, which, to the extent appealed from, denied plaintiff’s motion for summary judgment against Tam Medical Supply Corp., Charles Deng Acupuncture, P.C., Action Potential Chiropractic, PLLC, Maiga Products Corporation, Pierre J. Renelique, MD, Maria Masiglia PT, and Gentlecare Ambulatory Anesthesia Services (the answering defendants), unanimously affirmed, with costs.

Plaintiff no-fault insurer moved for summary judgment declaring that its policy does not provide coverage to the individual defendant for the subject accident based on her failure to appear for scheduled examinations under oath (EUO). Although the failure of a person eligible for no-fault benefits to appear for a properly noticed EUO constitutes a breach of a condition precedent vitiating coverage (see Hertz Corp. v Active Care Med. Supply Corp., 124 AD3d 411 [1st Dept 2015]; Allstate Ins. Co. v Pierre, 123 AD3d 618 [1st Dept 2014]), here defendants-respondents, assignees of the defaulting individual defendant, opposed plaintiff’s summary judgment motion on the ground that plaintiff had not established that it had requested the EUO within the time frame set by the no-fault regulations (see 11 NYCRR 65-3.5 [b]). In its reply, plaintiff failed to supply evidence bearing on whether the EUO had been requested within the appropriate time frame. Accordingly, plaintiff’s motion for summary judgment was properly denied. Concur—Tom, J.P., Friedman, Sweeny, Saxe and Clark, JJ.