Opinion
No. 2012–2081 Q C.
03-12-2015
ULTIMATE HEALTH PRODUCTS, INC. as Assignee of Francisco Chavez, Appellant, v. TRAVELERS INSURANCE COMPANY, 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 appeals from an order of the Civil Court which granted defendant's motion for summary judgment dismissing the complaint and denied plaintiff's cross motion for summary judgment.
Contrary to plaintiff's contentions on appeal, defendant established that plaintiff had failed to appear at either of the duly scheduled examinations under oath (EUOs) (see Stephen Fogel Psychological, P.C. v. Progressive Cas. Ins. Co., 35 AD3d 720 [2006] ) and that the denial of claim forms had been timely mailed (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] ). An appearance at an EUO is a condition precedent to an insurer's liability on a policy (see 11 NYCRR 65–1.1 ; Stephen Fogel Psychological, P.C., 35 AD3d 720 ). As a result, the court properly granted defendant's motion for summary judgment dismissing the complaint and denied plaintiff's cross motion for summary judgment.
Accordingly, the order is affirmed.
PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.