| Big Apple Med. Supply, Inc. v Titan & Nationwide |
| 2019 NY Slip Op 52067(U) [66 Misc 3d 131(A)] |
| Decided on December 13, 2019 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
Kopelevich & Feldsherova, P.C. (David Landfair of counsel), for appellant. Harris J. Zakarin, P.C. (Harris J. Zakarin of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered July 20, 2018. The order granted defendant's 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 appeals from an order of the Civil Court granting defendant's motion for summary judgment dismissing the complaint on the ground that plaintiff's assignor had failed to appear for duly scheduled examinations under oath (EUOs).
Where an insurer moves for summary judgment dismissing a complaint on the ground that a provider's assignor failed to appear for an EUO, to establish its prima facie case, the insurer need only establish "as a matter of law that it twice duly demanded an [EUO] from the [provider's] assignor, who had allegedly been injured in a motor vehicle accident, that the assignor twice failed to appear, and that the [insurer] issued a timely denial of the claims" (Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2014]). As a result, since appearance at a duly demanded 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]), contrary to plaintiff's contention, defendant established its entitlement to summary judgment. Plaintiff's remaining contention lacks merit.
Accordingly, the order is affirmed.
PESCE, P.J., ALIOTTA and SIEGAL, JJ., concur.