Eagle Surgical Supply, Inc. v Utica Mut. Ins. Co.

[*1] Eagle Surgical Supply, Inc. v Utica Mut. Ins. Co. 2010 NY Slip Op 51057(U) [27 Misc 3d 142(A)] Decided on June 11, 2010 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 11, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON and GOLIA, JJ
2009-1044 K C.

Eagle Surgical Supply, Inc. a/a/o SABRYNA BREEDLOVE, Appellant,

against

Utica Mutual Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Wavny Toussaint, J.), entered May 1, 2009. The order granted defendant's motion for summary judgment and denied plaintiff's cross motion for summary judgment.

ORDERED that the order is affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint, and plaintiff cross-moved for summary judgment. The Civil Court granted defendant's motion and denied plaintiff's cross motion, finding that there was no coverage for the claims at issue because the assignor had breached a condition precedent to coverage by failing to appear for two properly scheduled examinations under oath (EUOs). Plaintiff appeals from that order, and we affirm.

On appeal, plaintiff's only contention is that the EUO scheduling letters were "nullities" because they were sent by defendant's counsel on behalf of defendant, not by defendant directly. Plaintiff's argument lacks merit. The letters clearly apprised the assignor that counsel had been retained by defendant and that the letters were being sent on defendant's behalf. Accordingly, the Civil Court properly found that the assignor had breached a condition precedent to coverage, and the order is affirmed.

We reach no other issue.

Pesce, P.J., Weston and Golia, JJ., concur.
Decision Date: June 11, 2010