Opinion
No. 2012–1216KC.
2014-03-11
RIGHT AID MEDICAL SUPPLY CORP. as Assignee of Tanya Rosa, Respondent, v. UTICA MUTUAL INSURANCE COMPANY, Appellant.
Defendant established that the time to pay or deny plaintiff's claim had been tolled by the timely issuance of examination under oath (EUO) scheduling letters ( see St. Vincent's Hosp. of Richmond v. Government Empls. Ins. Co., 50 AD3d 1123 [2008] ); that plaintiff had failed to appear for either of the properly scheduled EUOs; and that the claims had been timely denied on that ground ( see Arco Med. NY, P.C. v. Lancer Ins. Co., 34 Misc.3d 134[A], 2011 N.Y. Slip Op 52382[U] [App Term, 2d, 11th & 13th Jud Dists 2011] ). Since an assignor's appearance at an EUO “is a condition precedent to the insurer's liability on the policy” ( see Stephen Fogel Psychological, P.C., 35 AD3d 720, 722 [2006] ), the order, insofar as appealed from, is reversed and defendant's cross motion for summary judgment dismissing the complaint is granted.