Excel Imaging, P.C. v Infinity Select Ins. Co.

[*1] Excel Imaging, P.C. v Infinity Select Ins. Co. 2014 NY Slip Op 51796(U) Decided on December 17, 2014 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 17, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2012-792 Q C

Excel Imaging, P.C. as Assignee of NESHIA DUNCAN, Respondent, -

against

Infinity Select Insurance Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Cheree A. Buggs, J.), entered September 16, 2011, deemed from a judgment of the same court entered March 8, 2012 (see CPLR 5501 [c]). The judgment, entered pursuant to the September 16, 2011 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 $1,626.53.

ORDERED that the judgment is reversed, with $30 costs, the order entered September 16, 2011 is vacated, plaintiff's motion for summary judgment is denied and defendant's cross motion for summary judgment dismissing the complaint is granted.

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]).

In opposition to plaintiff's motion for summary judgment, and in support of its cross motion for summary judgment dismissing the complaint, defendant established that its time to pay or deny plaintiff's claim had been tolled by the timely mailing of examination under oath (EUO) scheduling letters (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]), that plaintiff's assignor had failed to appear for either of the properly scheduled EUOs, and that the claim had been timely and properly denied on that ground (see id.; Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52455[U] [App Term, 2d & 11th Jud Dists 2007]). Furthermore, since plaintiff does not claim that its assignor objected to the reasonableness of the EUO requests, its objections regarding the requests will not now be heard (see Viviane Etienne Med. Care, P.C. v State Farm Mut. Auto. Ins. Co., 35 Misc 3d 127[A], 2012 NY Slip Op 50579[U] [App Term, 2d, 11th & 13th Jud Dists 2012]; Crescent Radiology, PLLC v American Tr. Ins. Co., 31 Misc 3d 134[A], 2011 NY Slip Op 50622[U] [App Term, 9th & 10th Jud Dists 2011]). An assignor's appearance at an EUO is a condition precedent to the insurer's liability on the policy (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 722 [2006]).

Accordingly, the judgment is reversed, the order entered September 16, 2011 is vacated, plaintiff's motion for summary judgment is denied and defendant's cross motion for summary judgment dismissing the complaint is granted.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: December 17, 2014