Longevity Med. Supply, Inc. v Praetorian Ins. Co. (2015 NY Slip Op 50685(U))

Appeal from an order of the District Court of Nassau County, First District (Fred J. Hirsh, J.), dated October 4, 2013. The order denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, without costs, and defendant’s motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint based on the failure of plaintiff’s assignor to appear for scheduled examinations under oath (EUOs). The District Court denied the motion, finding that, although defendant had established that it had timely denied plaintiff’s claims, defendant had failed to show an objective justification for scheduling EUOs of plaintiff’s assignor. This appeal by defendant ensued.

In support of its motion for summary judgment dismissing the complaint, defendant submitted an affirmation of its counsel, which affirmation established that the EUO scheduling letters had been sent to plaintiff’s assignor in accordance with counsel’s law office’s standard practices and procedures (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Richard Morgan Do, P.C. v State Farm Mut. Auto. Ins. Co., 22 Misc 3d 134[A], 2009 NY Slip Op 50242[U] [App Term, 9th & 10th Jud Dists 2009]). Defendant also proffered an affirmation by the attorney who was scheduled to conduct the first EUO, and a certified transcript of the follow-up EUO, which established that plaintiff’s assignor had failed to appear at either of the EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). In addition, defendant sufficiently established that the denial of claim forms had been timely mailed (see St. Vincent’s Hosp. of Richmond, 50 AD3d at 1124). The opposing affirmation of plaintiff’s counsel was insufficient to raise a triable issue of fact.

An appearance at an EUO “is a condition precedent to the insurer’s liability on the policy” (Stephen Fogel Psychological, P.C., 35 AD3d at 722). Contrary to the determination of the District Court, no provision of No-Fault Regulation 68 requires an insurer to set forth any objective standards for requesting an EUO (see Flow Chiropractic, P.C. v Travelers Home & Mar. Ins. Co., 44 Misc 3d 132[A], 2014 NY Slip Op 51142[U] [App Term, 9th & 10th Jud Dists 2014]). As plaintiff does not allege, let alone establish, that it or its assignor responded in any way to defendant’s EUO requests at issue, plaintiff’s objections regarding the EUO requests [*2]will not now be heard (see Crescent Radiology, PLLC v American Tr. Ins. Co., 31 Misc 3d 134[A], 2011 NY Slip Op 50622[U] [App Term, 9th & 10th Jud Dists 2011]).

Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.

Iannacci, J.P., Tolbert and Garguilo, JJ., concur.