A.O.T. Chiropractic, P.C. v. State Farm Mut. Auto. Ins. Co.

• Court: Appellate Terms of the Supreme Court of New York
• Decided: February 27, 2017
• Docket: 2017 NYSlipOp 50288(U)
• Status: Published

Opinion

A.O.T. Chiropractic, P.C., as Assignee of RAYSEAN SIMPSON, Appellant,

against

State Farm Mutual Automobile Ins. Co., Respondent.

Appeal from an order of the District Court of Suffolk County, Third District

(C. Stephen Hackeling, J.), dated February 19, 2015. The order granted defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the District Court which granted defendant's motion for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear at duly scheduled examinations under oath (EUOs).

Plaintiff's sole argument on appeal is that defendant failed to prove plaintiff's nonappearances. An appearance at an EUO is a condition precedent to an insurer's liability on a policy (see 11 NYCRR 65-1.1; Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). In support of its motion for summary judgment, defendant submitted an affirmation from the attorney who had been responsible for conducting the EUOs at issue. The affirmation established, based on the attorney's personal knowledge, that plaintiff had failed to appear for either of the duly scheduled EUOs (see Stephen Fogel Psychological, P.C., 35 AD3d at 722; Olmeur Med., P.C. v Nationwide Gen. Ins. Co., 41 Misc 3d 143[A], 2013 NY Slip Op 52031[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]).

Accordingly, the order is affirmed.

Marano, P.J., Garguilo and Brands, JJ., concur.

Decision Date: February 27, 2017