Opinion
No. 2013–50 K C.
09-17-2015
METRO HEALTH PRODUCTS, INC. as Assignee of Nuraldin Whetstone, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INS. CO., Respondent.
Opinion
Appeal from an order of the Civil Court of the City of New York, Kings County (Ingrid Joseph, J.), entered November 15, 2012. The order granted defendant's motion for summary judgment dismissing the complaint.
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. The Civil Court found that defendant had timely and properly denied the claims at issue on the ground that plaintiff had failed to comply with a condition precedent to coverage, in that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs). On appeal, plaintiff argues that defendant failed to prove that it had mailed its EUO scheduling letters and denial of claim forms, or that plaintiff had failed to appear for the EUOs; that defendant lacked justification for its EUO requests; that defendant's motion should have been denied pursuant to CPLR 3212(f), as plaintiff had not received discovery regarding the reasonableness of defendant's EUO requests; and that defendant failed to prove that plaintiff willfully obstructed defendant's investigation.
Contrary to plaintiff's arguments, the affidavits submitted by defendant established that the EUO scheduling letters and the denial of claim forms had been timely mailed in accordance with defendant's standard office practices and procedures (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] ), and the affirmation submitted by defendant's attorney, who was present in his office to conduct the EUO of plaintiff on the scheduled dates, was sufficient to establish that plaintiff had failed to appear. 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] ). Consequently, discovery relevant to the reasonableness of the EUO requests was not necessary for plaintiff to oppose defendant's motion (see CPLR 3212[f] ). To the extent plaintiff asserts that defendant did not demonstrate that plaintiff's failure to cooperate was willful, defendant complied with the regulations (see 11 NYCRR 65) and there is no requirement to establish willfulness (see Unitrin Advantage Ins. Co. v. Bayshore Physical Therapy, PLLC, 82 AD3d 559 2011 ).
Accordingly, the order is affirmed.
PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.