Olmeur Med., P.C. v Nationwide Gen. Ins. Co. (2013 NY Slip Op 52031(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 (Carolyn E. Wade, J.), entered March 15, 2012. The order denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, with $30 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 upon, among other things, plaintiff’s assignor’s failure to appear for scheduled examinations under oath (EUOs). In an order entered March 15, 2012, the Civil Court denied defendant’s motion on the ground that the certificate of conformity accompanying the affidavit, executed out of the state by defendant’s employee, was defective. Defendant appeals from the order and we reverse.

Defendant appropriately sought to cure the defect in its original certificate of conformity by annexing to its reply papers a certificate of conformity which rectified the defect (see Moccia v Carrier Car Rental, Inc., 40 AD3d 504 [2007]; Ave T MPC Corp. v Amica Mut. Ins. Co., 29 Misc 3d 136[A], 2010 NY Slip Op 52009[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). [*2]Although the Civil Court held that the corrected certificate of conformity was still not in proper form, we note that Real Property Law § 299-a (2) (a) specifically states that the signature on the certificate of conformity “shall be presumptively genuine” and the qualification of the person signing as a person authorized to make such certificate “shall be presumptively established by the recital thereof in the certificate.” As the certificate of conformity complied with the statutory requirements of Real Property Law § 299-a, the out-of-state affidavit which it accompanied should have been considered by the Civil Court and “treated as if taken within the state” (CPLR 2309 [c]).

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. His affirmation established that the EUO scheduling letters had been mailed to the assignor in accordance with his law firm’s standard office practices and procedures (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]), and that, based on the attorney’s personal knowledge, the assignor had failed to appear for either of the duly scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; Alrof, Inc. v Safeco Natl. Ins. Co., 39 Misc 3d 130[A], 2013 NY Slip Op 50458[U] [App Term, 2d, 11th & 13th Jud Dists 2013]). The affidavit submitted by defendant’s special claims representative and the out-of-state affidavit submitted by defendant’s centralized administrative team supervisor (which, as noted above, was accompanied by a proper certificate of conformity) together established that the denial of claim forms, which, among other things, denied plaintiff’s claims based upon the assignor’s failure to appear at the EUOs, had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16).
Since 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 at 722; 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]), and defendant established by admissible evidence plaintiff’s assignor’s noncompliance with this condition precedent, defendant’s motion should have been granted. Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.

Weston, J.P., Rios and Aliotta, JJ., concur.
Decision Date: December 03, 2013