February 27, 2017

A.O.T. Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co. (2017 NY Slip Op 50288(U))

Headnote

The court considered whether the plaintiff, a chiropractic provider, had failed to appear at duly scheduled examinations under oath (EUOs), which is a condition precedent to an insurer's liability on a policy. The main issue decided was whether the defendant had proven the plaintiff's nonappearances at the EUOs. The court held that an appearance at an EUO is a condition precedent to an insurer's liability on a policy and defendant had submitted an affirmation from the attorney responsible for conducting the EUOs, which established that the plaintiff had failed to appear for the scheduled EUOs. Therefore, the court affirmed the order granting defendant's motion for summary judgment dismissing the complaint.

Reported in New York Official Reports at A.O.T. Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co. (2017 NY Slip Op 50288(U))

A.O.T. Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co. (2017 NY Slip Op 50288(U)) [*1]

A.O.T. Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co.

2017 NY Slip Op 50288(U) [54 Misc 3d 145(A)]

Decided on February 27, 2017

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This opinion is uncorrected and will not be published in the printed Official Reports.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 February 27, 2017

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS

PRESENT: : MARANO, P.J., GARGUILO and BRANDS, JJ.
2015-597 S C

A.O.T. Chiropractic, P.C., as Assignee of RAYSEAN SIMPSON, Appellant,
against
State Farm Mutual Automobile Ins. Co., Respondent.

Appeal from an order of the District Court of Suffolk County, Third District

(C. Stephen Hackeling, J.), dated February 19, 2015. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the District Court which granted defendant’s motion for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear at duly scheduled examinations under oath (EUOs).

Plaintiff’s sole argument on appeal is that defendant failed to prove plaintiff’s nonappearances. An appearance at an EUO is a condition precedent to an insurer’s liability on a policy (see 11 NYCRR 65-1.1; Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). In support of its motion for summary judgment, defendant submitted an affirmation from the attorney who had been responsible for conducting the EUOs at issue. The affirmation established, based on the attorney’s personal knowledge, that plaintiff had failed to appear for either of the duly scheduled EUOs (see Stephen Fogel Psychological, P.C., 35 AD3d at 722; Olmeur Med., P.C. v Nationwide Gen. Ins. Co., 41 Misc 3d 143[A], 2013 NY Slip Op 52031[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]).

Accordingly, the order is affirmed.

Marano, P.J., Garguilo and Brands, JJ., concur.

Decision Date: February 27, 2017