Opinion
No. 2012–2096QC.
03-16-2015
LONGEVITY MEDICAL SUPPLY, INC. as Assignee of Barron Cunningham, Appellant, v. GEICO INS. CO., Respondent.
Opinion
ORDERED that the order is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. The Civil Court denied plaintiff's motion and granted defendant's cross motion.
On appeal, plaintiff argues that defendant failed to establish that plaintiff's assignor had failed to appear for duly scheduled examinations under oath (EUOs) and that, as a result, plaintiff's motion for summary judgment should have been granted and defendant's cross motion for summary judgment dismissing the complaint should have been denied. Contrary to plaintiff's contention, the affidavits submitted by defendant were sufficient to establish that plaintiff's assignor had failed to appear for the duly scheduled EUOs. Since an assignor's appearance at an EUO “is a condition precedent to the insurer's liability on the policy” ( Stephen Fogel Psychological, P.C. v. Progressive Cas. Ins. Co., 35 AD3d 720, 722 [2006] ), the order is affirmed.
PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.