Opinion
8877 Index 154077/15
04-02-2019
HERTZ VEHICLES, LLC, Plaintiff-Respondent, v. Jagga ALLURI, M.D., et al., Defendants, Advanced Orthopedics, P.C., Defendant-Appellant.
Jonathan B. Seplowe, P.C., Malverne (Damin J. Toell of counsel), for appellant. Rubin, Fiorella & Friedman, LLP, New York (David F. Boucher, Jr., of counsel), for respondent.
Jonathan B. Seplowe, P.C., Malverne (Damin J. Toell of counsel), for appellant.
Rubin, Fiorella & Friedman, LLP, New York (David F. Boucher, Jr., of counsel), for respondent.
Gische, J., Tom, Gesmer, Moulton, JJ.
Order, Supreme Court, New York County (Kathryn Freed, J.), entered on or about December 11, 2017, which, to the extent appealed from, granted plaintiff's motion for summary judgment declaring that plaintiff does not owe coverage for the no-fault claims allegedly assigned to defendant Advanced Orthopedics, P.C. (Advanced), unanimously affirmed, without costs.
The failure of a party eligible for no-fault benefits to appear for a properly-noticed Examination under Oath (EUO) constitutes a breach of a condition precedent, vitiating coverage ( Hertz Corp. v. Active Care Med. Supply Corp., 124 A.D.3d 411, 411 [1st Dept. 2015] ). As it is undisputed that Hertz Vehicles, LLC (Hertz) received a claim from Advanced on April 10, 2015, and that Advanced failed to appear at its scheduled EUOs in January and February of 2015, Hertz is under no obligation to honor any claims submitted by Advance retroactive to the date of loss ( Mapfre Ins. Co. of N.Y. v. Manoo, 140 A.D.3d 468, 33 N.Y.S.3d 54 [1st Dept. 2016] ; Unitrin Advantage Ins. Co. v. Bayshore Physical Therapy, PLLC, 82 A.D.3d 559, 560, 918 N.Y.S.2d 473 [1st Dept. 2011] ).We have considered this defendant's remaining contentions and find them to be unavailing.