47 Misc 3d 134(A)
N.Y. App. Term 2nd
2015

O & M Med., P.C. v Travelers Indem. Co.

2012-2227 Q C

Appellate Term, Second Department

March 26, 2015

2015 NY Slip Op 50476(U) | 47 Misc 3d 134(A)

PESCE, P.J., ALIOTTA and ELLIOT, JJ.

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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 26, 2015

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

PRESENT: : PESCE, P.J., ALIOTTA and ELLIOT, JJ.

2012-2227 Q C

O & M Medical, P.C. as Assignee of TIFFON DUNN, Respondent, March 26, 2015

against

Travelers Indemnity Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Joseph E. Capella, J.), entered August 1, 2012. The order denied defendant‘s motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint, alleging that the claim at issue had been timely and properly denied based, insofar as is relevant to this appeal, upon plaintiff‘s failure to appear at duly scheduled examinations under oath (EUOs). Plaintiff opposed the motion. The Civil Court denied the motion on the ground that defendant had received the claim at issue on June 9, 2009, but did not send the first EUO scheduling letter until September 2, 2009.

Pursuant to the No-Fault Regulations, ”any additional verification required by the insurer to establish proof of claim shall be requested within 15 business days of receipt of the [NF-3]” (11 NYCRR 65-3.5 [b] [emphasis added]). This rule applies to requests for EUOs (see e.g. Longevity Medical Supply, Inc. v IDS Property & Cas. Ins. Co., 44 Misc 3d 137[A], 2014 NY Slip Op 51244[U] [App Term, 2d, 11th & 13th Jud Dists 2014]). Here, there was no duly scheduled EUO at which plaintiff failed to appear, since defendant mailed its first EUO scheduling letter nearly three months after having received the claim at issue, rendering the letter a nullity. Consequently, defendant failed to demonstrate that it had properly denied the claim based upon plaintiff‘s failure to comply with a condition precedent to coverage (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006] [appearance at an EUO is a condition precedent to coverage]), and its motion for summary judgment dismissing the complaint was properly denied.

Accordingly, the order is affirmed.

Pesce, P.J., Aliotta and Elliot, JJ., concur.

Decision Date: March 26, 2015