Professional Health Imaging, P.C. v State Farm Mut. Auto. Ins. Co.

[*1] Professional Health Imaging, P.C. v State Farm Mut. Auto. Ins. Co. 2017 NY Slip Op 50199(U) Decided on February 8, 2017 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 8, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : WESTON, J.P., ALIOTTA and ELLIOT, JJ.
2015-240 K C

Professional Health Imaging, P.C., as Assignee of Crystal Perez, Respondent,

against

State Farm Mutual Automobile Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered October 27, 2014. The order denied defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, with $30 costs, and defendant's motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs). Plaintiff opposed the motion. By order entered October 27, 2014, the Civil Court denied defendant's motion on the ground that an issue of fact exists as to whether plaintiff had appeared for the EUOs.

Defendant's moving papers established that the EUO scheduling letters had been timely mailed (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) and that plaintiff had failed to appear for the duly scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Thus, defendant demonstrated that plaintiff had failed to comply with a condition precedent to coverage (id. at 722). As defendant had timely denied (see St. Vincent's Hosp. of Richmond, 50 AD3d 1123) the claims on that ground, and plaintiff failed to raise a triable issue of fact in opposition to defendant's motion, defendant was entitled to summary judgment dismissing the complaint.

Accordingly, the order is reversed and defendant's motion for summary judgment dismissing the complaint is granted.

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

Decision Date: February 08, 2017