November 26, 2013

Five Boro Psychological Servs., P.C. v Utica Mut. Ins. Co. (2013 NY Slip Op 52005(U))

Headnote

The court considered the fact that the defendant denied a claim for first-party no-fault benefits based on the alleged failure of the plaintiff's assignor to appear at scheduled examinations under oath (EUOs), but that the EUO had been rescheduled by mutual agreement prior to the original date. The main issue decided was whether a mutual rescheduling of the EUO prior to the scheduled date constitutes a failure to appear. The holding of the case was that a mutual rescheduling prior to the date of the scheduled EUO does not constitute a failure to appear, and therefore the defendant did not demonstrate that there had been a failure to appear at both an initial and a follow-up EUO, and did not prove that the plaintiff had failed to comply with a condition precedent to coverage. Therefore, the order denying the defendant's cross motion for summary judgment dismissing the complaint was affirmed.

Reported in New York Official Reports at Five Boro Psychological Servs., P.C. v Utica Mut. Ins. Co. (2013 NY Slip Op 52005(U))

Five Boro Psychological Servs., P.C. v Utica Mut. Ins. Co. (2013 NY Slip Op 52005(U)) [*1]

Five Boro Psychological Servs., P.C. v Utica Mut. Ins. Co.

2013 NY Slip Op 52005(U) [41 Misc 3d 140(A)]

Decided on November 26, 2013

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This opinion is uncorrected and will not be published in the printed Official Reports.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 November 26, 2013

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ
2011-2828 K C.

Five Boro Psychological Services, P.C. as Assignee of EHIMEN INEYBENEBOR, Respondent, —
against
Utica Mutual Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered May 5, 2011. 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 affirmed, with $25 costs.

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

Defendant denied the claim at issue based upon the alleged failure by plaintiff’s assignor to appear at duly scheduled examinations under oath (EUOs). However, according to the affirmation submitted by defendant’s counsel, the initial EUO had been rescheduled by mutual agreement, prior to the date it was to occur. A mutual rescheduling, which occurs prior to the date of the scheduled EUO, does not constitute a failure to appear (see DVS Chiropractic, P.C. v Interboro Ins. Co., 36 Misc 3d 138[A], 2012 NY Slip Op 51443[U] [App Term, 2d, 11th & 13th Jud Dists 2012]; Vitality Chiropractic, P.C. v Kemper Ins. Co., 14 Misc 3d 94 [App Term, 2d & [*2]11th Jud Dists 2006]). Therefore, as defendant did not demonstrate that there had been a failure to appear at both an initial and a follow-up EUO, defendant did not prove that plaintiff had failed to comply with a condition precedent to coverage (see DVS Chiropractic, P.C., 36 Misc 3d 138[A], 2012 NY Slip Op 51443[U]).

Accordingly, the order, insofar as appealed from, is affirmed.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: November 26, 2013