Ortho Prods. & Equip., Inc. v Interboro Ins. Co. (2013 NY Slip Op 52054(U))

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Margaret A. Pui Yee Chan, J.), entered December 17, 2010. The order, insofar as appealed from as limited by the brief, denied the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the claims assigned to plaintiff by Daniel Robinson and Bradley Forbes.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the claims assigned to plaintiff by Daniel Robinson and Bradley Forbes are granted.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court denied defendant’s motion for summary judgment dismissing the complaint. As limited by its brief, defendant appeals from so much of the order as denied the branches of defendant’s motion seeking to dismiss so much of the complaint as sought to recover upon the claims assigned to plaintiff by Daniel Robinson and Bradley Forbes.

Defendant established that it had timely denied the claims at issue (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]) on the ground that each assignor had failed to appear for examinations under oath (EUOs). It [*2]further established that its EUO scheduling letters had been timely mailed and that Mr. Robinson and Mr. Forbes had each failed to appear at either of their duly scheduled EUOs (see Quality Psychological Servs., P.C. v Interboro Mut. Indem. Ins. Co., 36 Misc 3d 146[A], 2012 NY Slip Op 51628[U] [App Term, 2d, 11th & 13th Jud Dists 2012]). Such an appearance at an EUO is a condition precedent to an insurer’s liability on a policy (see Insurance Department Regulations [11 NYCRR] § 65-1.1; Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 722 [2006]; Crotona Hgts. Med., P.C. v Farm Family Cas. Ins. Co., 27 Misc 3d 134[A], 2010 NY Slip Op 50716[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). In opposition to defendant’s motion, plaintiff failed to raise a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Accordingly, the order, insofar as appealed from, is reversed and the branches
of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the claims assigned to plaintiff by Daniel Robinson and Bradley Forbes are granted.

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

Rios, J., dissents in a separate memorandum.

Rios, J., dissents and votes to affirm the order, insofar as appealed from, in the following memorandum:

For the reasons set forth in my dissent in Quality Psychological Servs., P.C. v Interboro Mut. Indem. Ins. Co. (36 Misc 3d 146[A], 2012 NY Slip Op 51628[U] [App Term, 2d, 11th & 13th Jud Dists 2012]), I find that defendant failed to submit evidence from someone with personal knowledge establishing the nonappearance of the assignor for the scheduled examinations under oath. Consequently, in my opinion, the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the claims assigned to plaintiff by Daniel Robinson and Bradley Forbes were properly denied.

Accordingly, I would affirm the order, insofar as appealed from.
Decision Date: November 21, 2013