ALLAY MEDICAL SERVICES v. NATIONWIDE INS (2018)

RECITATION, AS REQUIRED BY CPLR 2219 (A), OF THE PAPERS CONSIDERED IN THE REVIEW OF THIS MOTION:

Answering Affidavit

Reply Affidavit

Defendant moves for summary judgment dismissing the complaint based on plaintiff's failure to attend an examination under oath. Plaintiff cross-moves for summary judgment in its favor, or in the alternative, for an order pursuant to CPLR 3212(g), finding that the bills at issue were mailed to and received by defendant.

Defendant contends that plaintiff's failure to attend an EUO violates a condition precedent to defendant's liability, mandating dismissal.

While plaintiff's non-appearance at an EUO vitiates defendant's obligation to provide coverage (see Stephen Fogel Psychological, P.C. v. Progressive Cas. Ins. Co., 35 AD3d 720, 827 N.Y.S.2d 217, 2006 NY Slip Op 09604 [2nd Dept 2006] ), to show entitlement to summary judgement, defendant must prove that it properly mailed the EUO requests to the plaintiff, who failed to appear for the EUO, and that defendant mailed plaintiff a timely denial. (See Interboro Ins. Co. v. Clennon, 113 AD3d 596, 979 N.Y.S.2d 83, 2014 NY Slip Op 00092 [2nd Dept 2014] ).

Proof of mailing may be shown based on actual mailing or that the item was mailed pursuant to the affiant's standard office practices and procedures designed to ensure proper mailing (see St. Vincent's Hosp. of Richmond v. Government Empls. Ins. Co., 50 AD3d 1123, 857 N.Y.S.2d 211, 2008 NY Slip Op 04072 [2d Dept 2008] ).

To establish the proper mailing procedure of the EUO requests and the denials, defendant submits an affidavit from Ms. Ulmer, stating that EUO requests and denials are assigned identifying numbers, then printed and placed in envelopes that are stamped by a “mail machine,” and kept in the mailing room, until delivered to United States Postal Service on the same date the documents were generated.

The affidavit, however, fails to establish that the afore-described procedure was designed to ensure that the EUO letters and denials were addressed to the correct recipient and properly mailed (see Progressive Cas. Ins. Co. v. Infinite Ortho Prods., Inc., 127 AD3d 1050, 7 N.Y.S.3d 429, 2015 NY Slip Op 03340 [2d Dept 2015] ).

Specifically, the affidavit does not indicate if the envelopes are addressed by a computer program or by an employee, how the envelopes are addressed to ensure the accuracy of the recipient's address, and in what manner the envelopes are weighed and affixed with proper postage using the “mail machine.” As there is insufficient information to enable judicial review of the propriety of defendant's mailing procedure, defendant fails to meet its burden that the EUO requests and the denials, were properly mailed to the plaintiff.

As defendant failed to establish entitlement to judgment as a matter of law on the issues of proper mailing of the EUO letters and denials, its motion for summary judgment is denied regardless of the sufficiency of plaintiff's opposition (see Stephen Fogel Psychological, P.C. v. Progressive Cas. Ins. Co., 35 AD3d 720, 827 N.Y.S.2d 217, NY Slip Op 09604 [2d Dept 2006], affg 7 Misc 3d 18 [App Term, 2d Dept 2004] ).

The cross motion for granting plaintiff summary judgment is further denied, as plaintiff failed to establish that defendant's denials were conclusory, vague or otherwise defective (see Megacure Acupuncture P.C. v. Clarendon Natl. Ins. Co., 33 Misc 3d 141(A), 941 N.Y.S.2d 538, 2011 NY Slip Op 52199(U) [App Term, 2d, 11th & 13th Jud Dists, 2011] ). However, plaintiff's cross-motion pursuant to pursuant to CPLR 3212(g) is granted to the extent that the bills at issue were mailed to and received by defendant.

Odessa Kennedy, J.