Opinion
No. 570965/15.
04-18-2016
MDJ MEDICAL PC a/a/o Leon May, Plaintiff–Respondent, v. DELOS INSURANCE COMPANY and North American Risk Services as Third Party Administrator, Defendants–Appellants.
Order (Elizabeth A. Taylor, J.), entered July 8, 2014, reversed, with $10 costs, and defendants' motion for summary judgment dismissing the complaint is granted. The Clerk is directed to enter judgment accordingly.
The defendant-insurer made a prima facie showing of entitlement to summary judgment dismissing the action for first-party no-fault benefits by establishing that it timely and properly mailed the notices for examinations under oath (EUOs) to plaintiff's assignor (see American Tr. Ins. Co. v. Marte–Rosario, 111 AD3d 442 [2013] ), and that the assignor failed to appear at two scheduled EUOs (see Allstate Ins. Co. v. Pierre, 123 AD3d 618 [2014] ; Hertz Corp. v. Active Care Med. Supply Corp., 124 AD3d 411 [2015] ). Contrary to plaintiff's specific contention, defendant established that it requested the EUOs within the applicable time frames set forth in the no-fault regulations, by submitting its EUO letters dated February 4, 2011 and March 1, 2011 (see 11 NYCRR 65–3.5 [b], 65–3.6[b]; cf. National Liab. & Fire Ins. Co. v. Tam Med. Supply Corp., 131 AD3d 851 [2015] ). Moreover, the attorney who was assigned by defendant to take an EUO of plaintiff's assignor with respect to the subject claim, and “who would have conducted the EUO if the [assignor] had appeared certainly was in a position to state that the [assignor] ... did not ... appear in his office on the date[s] indicated” (Hertz Corp., 124 AD3d at 411 ).
In opposition to defendant's prima facie showing, plaintiff did not specifically deny the assignor's nonappearance at the scheduled EUOs, or otherwise raise a triable issue with respect thereto, or as to the mailing or reasonableness of the underlying notices (see Unitrin Advantage Ins. Co. v. Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [2011], lv denied 17 NY3d 705 [2011] ).
I concur.