Opinion
No. 2013–1161 Q C.
11-13-2015
BARAKAT MEDICAL CARE, P.C. as Assignee of Leo Donegan, Respondent, v. NATIONWIDE INSURANCE COMPANY, Appellant.
Opinion
Appeal from an order of the Civil Court of the City of New York, Queens County (Carmen R. Velasquez, J.), entered April 12, 2013. The order, insofar as appealed from, denied the branch of defendant's motion seeking summary judgment dismissing so much of the complaint as sought to recover upon a claim in the sum of $677.21.
ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and the branch of defendant's motion seeking summary judgment dismissing so much of the complaint as sought to recover upon a claim in the sum of $677.21 is granted.
In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff's assignor had failed to appear for duly scheduled examinations under oath (EUOs). Insofar as is relevant to this appeal, by order entered April 12, 2013, the Civil Court denied the branch of defendant's motion seeking summary judgment dismissing so much of the complaint as sought to recover upon a claim in the sum of $677.21, on the ground that defendant had failed to demonstrate that it possessed an objective basis for requesting plaintiff's assignor to appear at an EUO.
In support of its motion, defendant submitted an affidavit from one of its special investigators, which affidavit established that the EUO scheduling letters had been timely sent to plaintiff's assignor in accordance with defendant's standard practices and procedures (see St. Vincent's Hosp. of Richmond v. Government Empls. Ins. Co., 50 AD3d 1123 2008 ). Defendant also annexed an affidavit from an investigator employed within defendant's special investigations unit, and stenographic transcripts, to show that the assignor had failed to appear for the duly scheduled 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).
Where an insurer moves for summary judgment dismissing the complaint on the ground that a provider's assignor failed to appear for an EUO, to establish its prima facie case, the insurer need only establish “as a matter of law that it twice duly demanded an [EUO] from the [provider's] assignor, who had allegedly been injured in a motor vehicle accident, that the assignor twice failed to appear, and that the [insurer] issued a timely denial of the claims arising from the [provider's] treatment of the assignor” (Interboro Ins. Co. v. Clennon, 113 AD3d 596, 597 2014 ). Thus, contrary to the determination of the Civil Court, defendant did not need to set forth the objective reasons for the requested EUOs as part of its prima facie showing of entitlement to judgment as a matter of law. Accordingly, since 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), the order, insofar as appealed from, is reversed and the branch of defendant's motion seeking summary judgment dismissing so much of the complaint as sought to recover upon a claim in the sum of $677.21 is granted.
PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.