Longevity Med. Supply, Inc. v Geico Ins. Co.

[*1] Longevity Med. Supply, Inc. v Geico Ins. Co. 2015 NY Slip Op 50392(U) Decided on March 16, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 16, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2012-2096 Q C

Longevity Medical Supply, Inc. as Assignee of BARRON CUNNINGHAM, Appellant,

against

Geico Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Barry A. Schwartz, J.), entered August 14, 2012. The order denied plaintiff's motion for summary judgment and granted defendant's cross motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. The Civil Court denied plaintiff's motion and granted defendant's cross motion.

On appeal, plaintiff argues that defendant failed to establish that plaintiff's assignor had failed to appear for duly scheduled examinations under oath (EUOs) and that, as a result, plaintiff's motion for summary judgment should have been granted and defendant's cross motion for summary judgment dismissing the complaint should have been denied. Contrary to plaintiff's contention, the affidavits submitted by defendant were sufficient to establish that plaintiff's assignor had failed to appear for the duly scheduled EUOs. Since an assignor's appearance at an EUO "is a condition precedent to the insurer's liability on the policy" (Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 722 [2006]), the order is affirmed.

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

Decision Date: March 16, 2015