FIVE BORO PSYCHOLOGICAL AND LICENSED MASTER SOCIAL WORK SERVICES PLLC v. GEICO GENERAL INS CO (2012)

Upon review of the foregoing papers, and after oral argument, the Decision/Order on defendant's motion for summary judgment dismissing the complaint is as follows:

Defendant moves for summary judgment dismissing the complaint on the ground that it issued timely denials of plaintiff's claims based upon the claimant's failure to appear for two scheduled examinations under oath (EUOs). Plaintiff opposes the motion on the grounds that there was not a reasonable basis for the EUO requests.

In support of its motion, defendant submitted the affidavit of its PIP Supervisor which established that the EUO notices were timely mailed to the claimant in accordance with defendant's standard office practices and procedures (see St. Vincent's Hosp. of Richmond v. Government Empls. Ins. Co., 50 A.D.3d 1123, 1124, 857 N.Y.S.2d 211 [2d Dept 2008]; Crescent Radiology, PLLC v. American Tr. Ins. Co., 31 Misc.3d 134[A] [App Term, 9th & 10th Jud Dists 2011] ). Defendant also submits the affirmation of the attorney assigned to perform the EUOs which established that the claimant failed to appear on both scheduled dates (see Stephen Fogel Psychological, P.C. v. Progressive Cas. Ins. Co., 35 A.D.3d 720, 827 N.Y.S.2d 217 [2d Dept 2006] ). Defendant also established that the denial of claim form was timely mailed in accordance with defendant's standard office practices and procedures (see St. Vincent's Hosp. of Richmond, 50 A.D.3d at 1124, 857 N.Y.S.2d 211).

The New York State Insurance Department Regulations provide that “[n]o action shall lie against the Company unless, as a condition precedent thereto, there shall have been full compliance with the terms of this coverage ․ [u]pon request by the Company, the eligible injured person or that person's assignee or representative shall: ․ (b) as may reasonably be required submit to examinations under oath by any person named by the Company and subscribe the same” (11 NYCRR 65–1.1; and see GLM Med., P.C. v. State Farm Mut. Auto. Ins. Co., 30 Misc.3d 137[A] [App Term, 2nd, 11th & 13th Jud Dists 2011] [“(a)n appearance at an EUO is a condition precedent to the insurer's liability on the policy”] ). The Appellate Term has determined that where a plaintiff fails to respond to the defendant's EUO requests it “will not be heard to complain that there was no reasonable basis for the EUO request” (Crescent Radiology, PLLC v. American Tr. Ins. Co., 31 Misc.3d 134[A] [App Term, 9th & 10th Jud Dists 2011]; Jamaica Medical Suply, Inc. v. Encompass Indem. Co., 36 Misc.3d 160 [A] [App Term, 2nd, 11th & 13th Jud Dists 2012]; Viviane Etienne Medical Care, P.C. v. State Farm Mut. Auto Ins. Co., 35 Misc.3d 127[A] [App Term, 11th & 13th Jud Dists 2012]; and see Westchester County Med. Ctr. v. New York Cent. Mut. Fire Ins. Co., 262 A.D.2d 553, 555, 692 N.Y.S.2d 665 [2d Dept 1999] [“(a)ny confusion on the part of the plaintiff as to what (verification) was being sought should have been addressed by further communication, not inaction”] ).

Plaintiff does not allege that the claimant appeared for the scheduled EUOs. Rather, plaintiff contends that the EUO requests were unreasonable and that it mailed letters objecting to the reasonableness of the EUO requests. However, plaintiff's objection letters were mailed approximately ten months after the initial EUO request was issued and, in fact, approximately four months after the plaintiff commenced this action. Because an appearance at an EUO is a condition precedent to an insurer's liability under the policy and to the commencement of an action to recover under the policy, plaintiff is required to preserve its objection to the reasonableness of the EUO requests prior to commencing suit. Failure to so object bars the plaintiff from raising the objection as an excuse for the claimant's non-appearances at scheduled EUOs (see Crescent Radiology, 31 Misc.3d 134[A]; Jamaica Medical Suply, Inc., 36 Misc.3d 160[A]; Viviane Etienne Medical Care, P.C., 35 Misc.3d 127 [A] ).

The purpose of the No–Fault regulations is to promote “prompt resolution of injury claims, [limit] cost to consumers and alleviat[e] unnecessary burdens on the courts” (Pommells v. Perez, 4 N.Y.3d 566, 571 [2005] ). Allowing the plaintiff to wait until after it commences suit to raise an objection to an EUO request would frustrate the intent of the No–Fault statute (see Canarsie Chiropractic, P.C. v. State Farm Mut. Auto. Ins. Co., 27 Misc.3d 1228[A] [Civ Ct, Kings County 2010] ). “Any questions concerning a communication should be addressed by further communication, not inaction” (id. at *2).

There are built-in timelines to the no-fault claims process. To fulfill the intent of the no-fault statute and the insurance regulations, claimants, providers and carriers must each act in good faith to address each claim in an expeditious manner. An appropriate objection must be timely to be meaningful. Under the circumstances, the court finds that plaintiff's response letters, issued after the commencement of the action, were submitted too late to constitute a legitimate response to defendant's EUO notices and were insufficient to preserve any objection to the reasonableness of the EUO requests. Therefore, plaintiff is barred from raising a challenge to the reasonableness of the EUO requests at this point. As a result, plaintiff must be found to have violated the conditions precedent to its claim.

Accordingly, defendant's motion is granted and the complaint is dismissed. This constitutes the decision and order of the court.

DEVIN P. COHEN, J.