Opinion
No. 2010–3255 K C.
2012-06-27
COLONIA MEDICAL, P.C. as Assignee of Garnett Smith, Appellant,— v. STATE FARM MUTUAL AUTOMOBILE INS. CO., Respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Peter Paul Sweeney, J.), entered October 29, 2010. The order granted defendant's motion for summary judgment dismissing the complaint.
Present: PESCE, P.J., RIOS and ALIOTTA, JJ.
ORDERED that the order is affirmed, without costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court granting defendant's motion for summary judgment dismissing the complaint.
Plaintiff argues that defendant is not entitled to summary judgment because defendant failed to establish that it had timely mailed examination under oath (EUO) scheduling letters and denial of claim forms. In support of its motion for summary judgment, defendant submitted affidavits by its special investigative unit team manager, mail room employee and bulk mail vendor, respectively, which were sufficient to establish that the EUO scheduling letters and denial of claim forms, which denied plaintiff's claims on the ground of plaintiff's failure to appear for scheduled EUOs, had been timely mailed ( 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] ). 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 720 [2006] ). As plaintiff's remaining contention lacks merit ( see Mega Supplies Billing, Inc. v. State Farm Mut. Auto. Ins. Co., 33 Misc.3d 136[A], 2011 N.Y. Slip Op 52023[U] [App Term, 2d, 11th & 13th Jud Dists 2011] ), the order is affirmed.