April 7, 2014

Active Chiropractic, P.C. v Praetorian Ins. Co. (2014 NY Slip Op 50634(U))

Headnote

The court considered that the defendant had timely mailed letters scheduling examinations under oath (EUOs) and the denial of claim form, and submitted certified transcripts of the scheduled EUOs, which demonstrated that the plaintiff's assignor had failed to appear. The plaintiff did not claim to have responded in any way to the EUO requests. Therefore, the defendant had demonstrated that the plaintiff had failed to satisfy a condition precedent to the defendant's liability on the insurance policy. The main issue decided was whether the defendant had provided sufficient evidence to show that the plaintiff had failed to satisfy a condition precedent to the defendant's liability on the insurance policy. The holding of the case was that the order denying the defendant's cross motion for summary judgment dismissing the complaint was reversed, and the defendant's cross motion for summary judgment dismissing the complaint was granted.

Reported in New York Official Reports at Active Chiropractic, P.C. v Praetorian Ins. Co. (2014 NY Slip Op 50634(U))

Active Chiropractic, P.C. v Praetorian Ins. Co. (2014 NY Slip Op 50634(U)) [*1]

Active Chiropractic, P.C. v Praetorian Ins. Co.

2014 NY Slip Op 50634(U) [43 Misc 3d 134(A)]

Decided on April 7, 2014

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This opinion is uncorrected and will not be published in the printed Official Reports.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 April 7, 2014

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

PRESENT: : WESTON, J.P., PESCE and ALIOTTA, JJ
2012-383 K C.

Active Chiropractic, P.C. as Assignee of LATISHA ROBINSON, Respondent,
against
Praetorian Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered January 13, 2012. The order, insofar as appealed from as limited by the brief, denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant’s cross motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals, as limited by its brief, from so much of an order of the Civil Court as denied its cross motion for summary judgment dismissing the complaint. Defendant established that it had 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]) letters and follow-up letters scheduling examinations under oath (EUOs), and the denial of claim form. Defendant also submitted certified transcripts of the scheduled EUOs, which demonstrated that plaintiff’s assignor had failed to appear. Plaintiff does not claim to have responded in any way to the EUO requests. Consequently, defendant demonstrated that plaintiff had failed to satisfy a condition precedent to defendant’s liability on the insurance policy (see Insurance Department Regulations [11 NYCRR] § 65-1.1; Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).

We note that the Civil Court improvidently exercised its discretion in excluding from consideration the affidavit of Edward Belfield on the ground that the affidavit, while notarized, was not accompanied by a certificate of conformity required by CPLR 2309 (c), as the absence of a certificate of conformity for an out-of-state affidavit is not a fatal defect (see Fredette v Town of Southampton, 95 AD3d 940 [2012] see also Gonzalez v Perkan Concrete Corp., 110 AD3d 955 [2013] Bey v Neuman, 100 AD3d 581 [2012] Smith v Allstate Ins. Co., 38 AD3d 522 [2007]).

Accordingly, the order, insofar as appealed from, is reversed and defendant’s cross motion for summary judgment dismissing the complaint is granted. Weston, J.P., Pesce and Aliotta, JJ., concur. [*2]
Decision Date: April 07, 2014