March 11, 2014

Right Aid Med. Supply Corp. v Utica Mut. Ins. Co. (2014 NY Slip Op 50421(U))

Headnote

The relevant facts considered by the court were that the defendant had timely issued examination under oath (EUO) scheduling letters and that the plaintiff had failed to appear for the scheduled EUOs. The main issue decided was whether the failure to appear for the EUOs could be grounds for timely denial of the claims at issue. The court held that the defendant had established that the time to pay or deny the plaintiff's claim had been tolled by the timely issuance of EUO scheduling letters, and that the plaintiff's failure to appear for the EUOs was a valid reason for the timely denial of the claims. Therefore, the court reversed the order and granted the defendant's cross motion for summary judgment dismissing the complaint.

Reported in New York Official Reports at Right Aid Med. Supply Corp. v Utica Mut. Ins. Co. (2014 NY Slip Op 50421(U))

Right Aid Med. Supply Corp. v Utica Mut. Ins. Co. (2014 NY Slip Op 50421(U)) [*1]

Right Aid Med. Supply Corp. v Utica Mut. Ins. Co.

2014 NY Slip Op 50421(U) [42 Misc 3d 151(A)]

Decided on March 11, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 March 11, 2014

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ
2012-1216 K C.

Right Aid Medical Supply Corp. as Assignee of TANYA ROSA, Respondent,
against
Utica Mutual Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered July 2, 2010. The order, insofar as appealed from, 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.

Insofar as is relevant to this appeal, in this action by a provider to recover assigned first-party no-fault benefits, defendant cross-moved for summary judgment dismissing the complaint on the ground that defendant had timely and properly denied the claims at issue based on plaintiff’s assignor’s failure to appear for duly scheduled examinations under oath (EUOs). Defendant appeals from so much of an order of the Civil Court as denied defendant’s cross motion.

Defendant established that the time to pay or deny plaintiff’s claim had been tolled by the timely issuance of examination under oath (EUO) scheduling letters (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]); that plaintiff had failed to appear for either of the properly scheduled EUOs; and that the claims had been timely denied on that ground (see Arco Med. NY, P.C. v Lancer Ins. Co., 34 Misc 3d 134[A], 2011 NY Slip Op 52382[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). Since an assignor’s appearance at an EUO “is a condition precedent to the insurer’s liability on the policy” (see Stephen Fogel Psychological, P.C., 35 AD3d 720, 722 [2006]), the order, insofar as appealed from, is reversed and defendant’s cross motion for summary judgment dismissing the complaint is granted.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: March 11, 2014