Dover Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co.
Annotate this CaseDecided on September 17, 2010
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Shulman, Hunter, Jr., JJ
570825/09.
Dover Acupuncture, P.C., a/a/o Jorge Brisita, Plaintiff-Respondent,
against
State Farm Mutual Automobile Ins. Co., Defendant-Appellant.
Defendant appeals from an order of the Civil Court of the City of New York, New York
County (Manuel J. Mendez, J.), dated January 5, 2009, which denied its motion for summary
judgment dismissing the complaint.
Per Curiam.
Order (Manuel J. Mendez, J.), dated January 5, 2009, reversed, without costs, motion granted and complaint dismissed. The Clerk is directed to enter judgment accordingly.
Defendant-insurer made a prima facie showing of entitlement to judgment as a matter of law
dismissing the complaint by establishing that it mailed the notices requiring the principal of
plaintiff medical services provider to appear for an examination under oath (EUO) and that the
principal failed to appear for such an examination (see generally Marina v Praetorian Ins. Co., 28 Misc 3d 132[A],
2010 NY Slip Op 51292[U] [2010]). In opposition, plaintiff failed to raise a triable issue, and its
arguments in opposition to defendant's motion are unpersuasive. Defendant was not required to
produce the applicable automobile insurance policy in order to establish that the mandatory
personal injury endorsement included an EUO provision, since the subject claim arose
out of an accident that occurred in 2007, at a time when the policy necessarily would have
contained such a provision (see Eagle
Chiropractic, P.C. v Chubb Indem. Ins. Co., 19 Misc 3d 129[A], 2008 NY Slip Op
50525[U]; cf. SZ Med. P.C. v State
Farm Mut. Auto. Ins. Co., 9 Misc 3d 139[A], 2005 NY Slip Op 51842[U] [2005]). In
any event, even assuming, arguendo, that the policy did not contain an EUO provision, the
policy would be construed as though it did (see Insurance Law § 5103[h]).
Moreover, contrary to Civil Court's conclusion, an EUO need not be scheduled within 30 days of
defendant-insurer's receipt of the claim (see Eagle Surgical Supply Inc. v Progressive Cas. Ins. Co., 21 Misc 3d
49 [2008]). Thus, defendant was entitled to summary judgment dismissing the complaint
based upon plaintiff's failure to comply with a condition precedent to coverage (see generally Inwood Hill Med., P.C. v
General Assur. Co., 10 Misc 3d 18 [2005]).
[*2]THIS CONSTITUTES THE DECISION AND
ORDER OF THE COURT.
I concur
Decision Date: September 17, 2010
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