Opinion
No. 2011–1352 K C.
2013-05-6
FLATBUSH CHIROPRACTIC, P.C. as Assignee of Leon Bryant, 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 (Devin P. Cohen, J.), entered April 4, 2011. The order granted defendant's motion for summary judgment dismissing the complaint and denied plaintiff's cross motion for summary judgment.
Present PESCE, P.J., RIOS and SOLOMON, JJ.
ORDERED that the order is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant's motion for summary judgment dismissing the complaint, finding that plaintiff had failed to comply with a condition precedent to coverage in that it had failed to appear for duly scheduled examinations under oath (EUOs), and denied plaintiff's cross motion for summary judgment. Plaintiff argues that defendant failed to prove that it had mailed its EUO scheduling letters and denial of claim forms and that defendant lacked justification for its EUO requests.
Contrary to plaintiff's argument, the affidavits submitted by defendant established that the EUO scheduling letters and the denial of claim forms 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] ). Furthermore, since plaintiff does not claim to have responded in any way to the EUO requests, its objections regarding the EUO requests will not now be heard ( see Viviane Etienne Med. Care, P.C. v. State Farm Mut. Auto. Ins. Co., 35 Misc.3d 127[A], 2012 N.Y. Slip Op 50579[U] [App Term, 2d, 11th & 13th Jud Dists 2012]; Crescent Radiology, PLLC v. American Tr. Ins. Co., 31 Misc.3d 134[A], 2011 N.Y. Slip Op 50622[U] [App Term, 9th & 10th Jud Dists 2011] ).
Accordingly, the order is affirmed.