Avicenna Med. Arts, P.L.L.C. v Ameriprise Auto & Home

[*1] Avicenna Med. Arts, P.L.L.C. v Ameriprise Auto & Home 2015 NY Slip Op 50701(U) Decided on May 5, 2015 Appellate Term, Second 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 5, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON and ALIOTTA, JJ.
2013-66 Q C

Avicenna Medical Arts, P.L.L.C. as Assignee of WILKYS ABREU, Respondent,

against

Ameriprise Auto & Home, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (James E. d'Auguste, J.), entered December 3, 2012, deemed from a judgment of the same court entered December 28, 2012 (see CPLR 5501 [c]). The judgment, entered pursuant to the December 3, 2012 order granting plaintiff's motion for summary judgment and denying defendant's cross motion for summary judgment dismissing the complaint, awarded plaintiff the principal sum of $2,627.61.

ORDERED that the judgment is reversed, without costs, so much of the order entered December 3, 2012 as granted plaintiff's motion for summary judgment is vacated, and plaintiff's motion is denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court which granted plaintiff's motion for

summary judgment and denied defendant's cross motion for summary judgment dismissing the complaint. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

Defendant denied the claims at issue based upon the alleged failure by plaintiff's assignor to appear at duly scheduled examinations under oath (EUOs). The Civil Court denied defendant's cross motion on the ground that the facts submitted by defendant in support of its cross motion showed that the EUO had been rescheduled three times and, thus, that there was only one nonappearance.

On this record, we find that there is an issue of fact as to whether plaintiff's assignor failed to comply with a condition precedent to coverage (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). The failure to appear at both an initial and follow-up EUO is a breach of that condition precedent and is a proper basis to deny a no-fault claim (see e.g. Excel Imaging, P.C. v Infinity Select Ins. Co., 46 Misc 3d 128[A], 2014 NY Slip Op 51796[U] [App Term, 2d, 11th & 13th Jud Dists 2014]). Here, defendant alleges that plaintiff's assignor was scheduled to appear for an EUO on four different dates, that he did not appear at all, and that his conduct constituted a failure to comply with a condition precedent to coverage. However, defendant concedes on appeal that the second and third examination dates had been mutually rescheduled prior to the appointed time, and therefore a no-show on those dates would not be deemed to constitute a failure to appear (see DVS Chiropractic, P.C. v [*2]Interboro Ins. Co., 36 Misc 3d 138[A], 2012 NY Slip Op 51443[U] [App Term, 2d, 11th & 13th Jud Dists 2012]). Furthermore, it is unclear from the record whether the first EUO had been mutually rescheduled prior to the appointed time, in which case it would not constitute a failure to appear. Even if it had not been, the circumstances surrounding the first and fourth scheduled examination dates are so unclear on this record that it is impossible to tell whether there might potentially be another basis to find that either date should not be deemed to constitute a failure to appear.

Accordingly, the judgment is reversed, so much of the order entered December 3, 2012 as granted plaintiff's motion for summary judgment is vacated, and plaintiff's motion is denied.

Pesce, P.J., Weston and Aliotta, JJ., concur.

Decision Date: May 05, 2015