Metro Psychological Servs., P.C. v Mercury Cas. Co.

[*1] Metro Psychological Servs., P.C. v Mercury Cas. Co. 2015 NY Slip Op 51644(U) Decided on November 18, 2015 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 18, 2015
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Schoenfeld, J.P., Shulman, Hunter, Jr., JJ.
570600/15

Metro Psychological Services, P.C. a/a/o Prophete Gregory, Plaintiff-Respondent,

against

Mercury Casualty Company, Defendant-Appellant.

Defendant appeals from an order the Civil Court of the City of New York, Bronx County (Joseph E. Capella, J.), entered December 4, 2013, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Joseph E. Capella, J.), entered December 4, 2013, reversed, with $10 costs, and defendant's 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 to plaintiff's assignor and his attorney, and that the assignor failed to appear at the initial and follow-up EUOs (see Allstate Ins. Co. v Pierre, 123 AD3d 618 [2014]; see also Hertz Corp. v Active Care Med. Supply Corp., 124 AD3d 411 [2015]). While the rescheduling of the initial (April 10, 2012) EUO - by mutual agreement of the parties prior to the scheduled date - did not constitute a failure to appear (see DVS Chiropractic, P.C. v Interboro Ins. Co., 36 Misc 3d 138[A], 2012 NY Slip Op 51443[U][App Term, 2d, 11th and 13th Jud Dists][2012]), defendant established that the assignor subsequently failed to appear at the time of the rescheduled EUO (May 2, 2012) and follow-up EUO (May 21, 2012). Contrary to Civil Court's determination, defendant's rescheduling of the May 2, 2012 EUO upon the assignor's failure to appear at that EUO, constituted a follow-up EUO request (see 11 NYCRR 65-3.6[b]).

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]). Nor did plaintiff raise a triable issue as to whether the assignor's failure to appear at the (two) scheduled EUOs was excusable (see IDS Prop. Cas. Ins. Co. v Stracar Med. Servs., P.C., 116 AD3d 1005, 1007 [2014][in opposition to insurer's showing that the providers "twice [*2]failed to appear" for EUOs, providers failed to submit evidence of a "reasonable excuse" for noncompliance with the EUO requests]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: November 18, 2015