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Civil Court, City of New York.

PROMPT MEDICAL SUPPLY, INC., As Assignee of Richard Henry, Plaintiff, v. METROPOLITAN GROUP PROP. & CAS. INS., Defendant.


Decided: March 28, 2019

Attorney for Plaintiff: David Landfair, Esq., Kopelevich and Feldsherova, 882 Third Avenue, 3rd Fl., Ste. Ne1, Brooklyn, New York 11232 Attorney for Defendant: Jeffrey S. Siegal, Bruno, Gerbino & Soriano, LLP, 445 Broad Hollow Road, Melville, New York 11747


Notice of Motion 1, 2

Notice of Cross-Motion

Affirmation in Opposition 3

In an action to recover assigned first-party no-fault insurance benefits, defendant moves for summary judgment pursuant to CPLR 3212, based on plaintiff's alleged failure to appear for an Examination Under Oath “EUO.”

Defendant received plaintiff's bills on March 24, 2017; and on March 27, 2017, sent plaintiff a letter scheduling an EUO for April 10, 2017. Defense counsel claims plaintiff failed to appear for the EUO, and that he memorialized the non-appearance by placing a statement on the record.

Defendant states that on April 12, 2017, it sent a follow up letter rescheduling the EUO to April 26, 2017. Plaintiff again failed to appear for the EUO, and defense counsel memorialized the nonappearance on the record.

On May 4, 2017, defendant denied the bills at issue based on plaintiff's failure to attend an EUO, which it contends, absolves defendant of the responsibility to provide coverage.

The appearance of plaintiff at an EUO is a condition precedent to the insurer's liability on the policy (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]); thus, defendant is correct that plaintiff's failure to appear vitiates insurer's obligations under the policy (see Argento v. Aetna Cas. & Sur. Co., 184 AD2d 487, 584 N.Y.S.3d 607 [2nd Dept 1992]).

However, to demonstrate entitlement to summary judgement based on a provider's failure to appear for an EUO, defendant must prove through admissible evidence, it had twice duly demanded an EUO from the provider, that the provider failed to appear, and defendant issued a timely denial. (See Island Life Chiropractic P.C. v. State Farm Mut. Auto. Ins. Co., 61 Misc 3d 136(A), 2018 NY Slip Op 51552[U] [App. Term, 2nd Dept, 2d, 11th & 13th Jud Dists 2018], citing Interboro Ins. Co. v. Clennon, 113 AD3d 596, 979 N.Y.S.2d 83, 2014 NY Slip Op. 00092 [2nd Dept 2014]).

In the instant matter, defendant argues plaintiff did not attend any of the two EUOs scheduled. However, defendant has the burden to establish, through admissible evidence, that that the EUO scheduling letters, and defendant's denials, were properly mailed to the plaintiff. (See Parisien v. Maya Assur. Co., 59 Misc 3d 146(A), 2018 NY Slip Op. 50766(U) [App Term, 2nd Dept, 2d, 11th & 13th Jud Dists 2018]; L.Z.R. Raphaely Galleries, Inc. v. Lumbermens Mut. Cas. Co., 191 AD2d 680, 595 N.Y.S.2d 802 [2nd Dept 1993]).

To establish the admissibility of the two scheduling letters, serving as the basis of defendant's motion, defendant the must prove that the documents were (1) “made in the regular course of defendant's business” and (2) that “it was the regular course of business of the defendant to make” the documents at the time or within reasonable time after the event reflected in the documents. (See CPLR 4518(a)).

To fulfill the requirements of CPLR 4518 (a), defense counsel states that the EUO scheduling letters were created in the regular course of business of his law firm, which however, satisfies only the first prong of CPLR 4518(a). The second prong of the statute is not satisfied, as counsel does not state or establish that “it was the regular course of his law firm to make” the documents. Further, counsel represents that the letters were created by “an individual with knowledge” without, however, providing any information about the person, the basis of the person's knowledge, whether the individual was an employee of defense counsel, or created the letters, in the regular course of business of defendant's law firm. Defendant's failure to satisfy the requirements of CPLR 4518(a), renders the EUO scheduling letters, inadmissible, and warrants denial of the motion, as defendant fails to establish as a matter of law that it timely requested the EUOs.

Had defendant established the evidentiary foundation of the EUO letters, it's motion would still be denied, as it further fails to establish that the EUO scheduling letters were properly addressed and mailed to the plaintiff.

To establish entitlement to summary judgment, defendant must prove that it had a procedure 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]).

In the case at bar, defense counsel states that an individual affixes “the proper postage to the envelope containing the EUO request letter.” However, the statement is conclusory, as counsel provides no information as to whether the envelopes are addressed by a computer, machine, and/or by an employee; how the envelopes are addressed to ensure the accuracy of the recipient's address, and the method by the envelopes are weighed and affixed with proper postage. Accordingly, defendant fails to establish its proper mailing of the EUO scheduling letters.

With respect to the mailing of the denials, defendant's claims adjuster states they were properly mailed to the plaintiff, as the “recipient's address” is printed on the denial, and on the envelope containing the denial.

However, the claims adjuster fails to provide any information as to how and by whom the names and the proper addresses of the recipient, are obtained and printed on the denial, and on the envelope containing the denial. Nor does defendant's adjuster establish that defendant's mailing practices are designed to ensure that the envelopes are correctly addressed. Thus, defendant's motion is further denied as defendant failed to show that it correctly addressed the denials to the plaintiff.

In addition, there is no evidence establishing that defendant affixed proper postage on the envelopes bearing the denials. Defendant's claims adjuster concludes that proper postage is “applied” to the envelopes containing the denials, but fails to provide any information regarding the individual, if any, who applies the postage, whether the postage is applied by a computer, a machine, or the method by which proper postage is determined.

Based on the foregoing, defendant failed to eliminate all triable issues of fact in connection with establishing defendant's proper mailing of the EUO scheduling letters and denials. As defendant did not establish its entitlement to summary judgment, irrespective of the sufficiency of plaintiff's opposition (see Alverez v. Prospect Hosp., 68 NY2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986]), its motion is denied.

Odessa Kennedy, J.

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