Opinion
No. 2012–2227QC.
03-26-2015
O & M MEDICAL, P.C. as Assignee of Tiffon Dunn, Respondent, v. TRAVELERS INDEMNITY COMPANY, Appellant.
Opinion
ORDERED that the order is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint, alleging that the claim at issue had been timely and properly denied based, insofar as is relevant to this appeal, upon plaintiff's failure to appear at duly scheduled examinations under oath (EUOs). Plaintiff opposed the motion. The Civil Court denied the motion on the ground that defendant had received the claim at issue on June 9, 2009, but did not send the first EUO scheduling letter until September 2, 2009.
Pursuant to the No–Fault Regulations, “any additional verification required by the insurer to establish proof of claim shall be requested within 15 business days of receipt of the [NF–3]” (11 NYCRR 65–3.5 [b] [emphasis added] ). This rule applies to requests for EUOs (see e.g. Longevity Medical Supply, Inc. v. IDS Property & Cas. Ins. Co., 44 Misc.3d 137[A], 2014 N.Y. Slip Op 51244[U] [App Term, 2d, 11th & 13th Jud Dists 2014] ). Here, there was no duly scheduled EUO at which plaintiff failed to appear, since defendant mailed its first EUO scheduling letter nearly three months after having received the claim at issue, rendering the letter a ity. Consequently, defendant failed to demonstrate that it had properly denied the claim based upon plaintiff's failure to comply with a condition precedent to coverage (see Stephen Fogel Psychological, P.C. v. Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006] [appearance at an EUO is a condition precedent to coverage] ), and its motion for summary judgment dismissing the complaint was properly denied.
Accordingly, the order is affirmed.
PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.