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Civil Court, City of New York,


Index No. CV-713853-19/BX

Decided: August 18, 2021

Counsel for Plaintiff: Park Avenue Chiropractic & Health Care PC AAO Stacey Antione by Sander Barshay Grossman, LLC Counsel for Defendant: Maya Assurance Company by Di Martini & Yi, LLP

Recitation as Required by CPLR § 2219(a): The following papers were read on this Motion for Summary Judgment

Papers Numbered

Defendant's Notice of Motion, Affirmation in Support, and Exhibits 1

Plaintiff's Cross Motion, Affirmation in Opposition 2

Defendant's Affirmation in Opposition and Reply Affirmation 3

Upon the foregoing cited papers, the Decision and Order of this Court is as follows:

In this action to recover assigned no-fault benefits, Petitioner seeks payment of eleven claims in the sum of $1,867.65 for medical services rendered to Assignor between July 23, 2018 and April 9, 2019, for injuries sustained in a motor vehicle accident. Defendant now moves, pursuant to CPLR § 3212, for summary judgment asserting that Plaintiff failed to appear for two scheduled examinations under oath (EUO), which failures, it is argued, entitle Defendant to deny the claims. Alternatively, Defendant seeks partial summary judgment on five of the eleven claims for services rendered by Plaintiff between November 26, 2018 and March 14, 2019, for want of medical necessity. Defendant relies on an Independent Medical Examination (IME) report from Dr. Robert Costello, D.C., as grounds for the alternative relief requested.

Plaintiff opposes the instant motion asserting that it provided Defendant with a written objection to the first scheduled EUO, and therefore, did not have to appear at either examination. Additionally, Plaintiff seeks to justify the medical necessity of the services provided by reliance on a medical report from Dr. Samuel Park, D.C. Because, as more fully explained below, this Court finds that Plaintiff was required to participate in the duly scheduled EUOs, notwithstanding its written objection to same to Defendant, it hereby grants Defendant's motion and dismisses the Complaint with prejudice.

On a motion for summary judgment, the moving party must present sufficient evidence in admissible form to show the absence of any material issue of fact and the right to entitlement to judgment as a matter of law (Alvarez v Prospect Hospital, 68 NY2d 320, 326 [1986]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]). If the moving party has established sufficient proof to warrant summary judgment, the burden shifts to the party opposing the motion to produce evidentiary proof in admissible form sufficient to establish the existence of material facts which require a trial (Zuckerman v City of New York, 49 NY2d 557 [1980]). If there are no material, triable issues of fact, summary judgment must be granted (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395 [1957]). Issue finding, not issue determination, is the key to summary judgment (Rose v Da Ecib USA, 259 AD2d 258 [1st Dept 1999]). A mere conclusory assertion devoid of evidentiary facts is insufficient to defeat a well-supported summary judgment motion, as is reliance upon surmise, conjecture, or speculation (Grullon v City of New York, 297 AD2d 261 [1st Dept 2002]).

The failure of a person eligible for no-fault benefits or its assignee to appear for properly noticed EUOs constitutes a breach of a condition precedent to coverage (New York Presbyterian Hospital v Country—Wide Insurance, 17 NY3d 586 [2011]; Unitrin Advantage Ins Co v Dowd 194 AD3d 507 [1st Dept 2021]; Mapfre Ins. Co. of New York v Manoo, 140 AD3d 468, 470 [1st Dept 2016]; Allstate Ins. Co. v Pierre, 123 AD3d 618 [1st Dept 2014]). Such failure permits a carrier to deny, retroactively, all claims going back to the date of loss regardless of whether the denials were timely issued or whether the initial denials were based a different reason (Unitrin Advantage Ins. Co. v Bayshore Physical Therapy PPLC et al, 82 AD3d 559, 560 [1st Dept 2016]; Stephen Fogel Psychological PC v Progressive Casualty Ins. Co., 35 AD3d 720, 721-22 [2d Dept 2006]). To succeed on a summary judgment motion based on the failure of an assignee to appear at EOUs, an insurance carrier first must establish that it properly mailed notices for the EUOs (American Transit Ins. Co. v Lucas, 111 AD3d 423 [1st Dept 2013]). The presumption of receipt of mail may be established by either proof of actual mailing or proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed (Nassau Ins. Co. v Murray, 46 NY2d 828 [1978]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d [2d Dept 2001]; Matter of Francis v Wing, 263 AD2d 432 [1st Dept 1999]). In addition, the carrier must establish that the assignee failed to appear at said examinations (American Transit Ins. Co. v Lucas, 111 AD3d 423).

Relevant here, in support of its motion, Defendant submitted an affirmation from attorney Arthur J. DeMartini, whose firm conducts examinations under oath on Defendant's behalf and received Defendant's request to schedule Plaintiff's two EUOs (Exh. G, DeMartini Aff. In Supp.). In the affirmation, DeMartini stated that before each EUO notice was mailed to Plaintiff and its counsel, he personally: (i) reviewed the EUO notice letters; (ii) verified the mailing addresses for Plaintiff and its counsel; and then, (iii) mailed the notices at the post office. Copies of the notices scheduling the EUOs for August 22, 2018 and September 14, 2019 were attached to his affirmation. Also attached to Defendant's motion were certified transcripts of the two EUOs Plaintiff failed to attend. The transcripts reflect that on each EUO date, the assigned attorney, Helen Cohen of DeMartini & Yi, L.L.P., waited approximately 45 minutes prior to making a statement on the record cancelling the event upon Plaintiff's failure to appear. Based on this evidence, Defendant has established that it properly notified Plaintiff and its attorney of both examinations, and that Plaintiff failed to appear on both occasions. Thus, Defendant has demonstrated its prima facia entitlement to summary judgment herein (Metro Psychological Services P.C. v Mercury Cas. Co., 49 Misc 3d 143 [A] [App Term, 1st Dept 2015]). Having done so, the burden now shifts to Plaintiff to raise a question of fact requiring a trial.

In opposition, Plaintiff does not dispute Defendant's representation that it failed to appear at the EUOs. Rather, Plaintiff submits a letter dated August 23, 2018, in which Plaintiff's counsel acknowledged receipt of Defendant's notice for the August 22, 2018 EUO and requested that Defendant justify the need for same. Plaintiff's letter also advised Defendant that the time and location of the August 22, 2018 EUO was not convenient for Plaintiff or its counsel. At the threshold, this Court finds that Plaintiff's August 23, 2018 objection to the August 22, 2018 EUO was untimely insofar as the objecting document — written a day after the scheduled event — could not afford Defendant an opportunity either to reschedule the event to a new more convenient date or time, or to make the location of the examination more convenient (Accord, American Chiropractic, PC, v GEICO, 57 Misc 3d 529, 531 [Kings Cty Civ Ct 2017][construing as timely a request (or objection) by assignee to insurer when made “sufficiently prior to the date on which an EUO is scheduled to allow for a response”]). To be sure, by objecting to the EUO after the examination date has passed, Plaintiff, in addition to precluding any meaningful response by Defendant, would unnecessarily cause Defendant to incur otherwise avoidable expenses in the form of counsel and court reporter fees. Such a waste of time, effort and resources cannot be justified by this Court. Viewed this way, this Court finds that an objection to an EUO written after the scheduled examination date is, in effect, a nullity and of no effect. Further, to the extent Plaintiff received a second EUO notice and failed altogether to object to same, its objection will not now be heard (Flow Chiropractic, P.C. v Travelers Home and Mar. Ins. Co., 44 Misc 3d 132[A]).

Moreover, while courts have varied respecting whether an insurer must, in response to an objection or a demand for justification of an EUO, respond to same as a precondition to an assignor or assignee's participation therein (compare, Amer. Transit Ins. Co. v Jaga Med. Svcs, P.C., 128 AD3d 441 [1st Dept 2015][unanimously reversing trial court's grant of summary judgment upon finding that “the reason for an EUO is a fact essential” to granting summary relief]; with Bronx Chiropractic Care, P.C. v State Farm Ins. Co., 63 Misc 3d 132[A] [App Term, 2nd Dept 2019][ no requirement that insurance carrier provide reason for its demand for EUO]; Flow Chiropractic, P.C. v Travelers Home and Mar. Ins Co., 44 Misc 3d 132[A] [App Term, 2d Dept 2014]), we need not wrestle with that issue here. As noted above, the Court deems Plaintiff's late objection letter a nullity requiring no response. Hence, Plaintiff's late objection letter did not excuse its failure to appear at either of the duly noticed EUOs scheduled by Defendant. Thus, Plaintiff has failed to raise a triable question of fact to defeat Defendant's well-supported summary judgment motion.

Finally, because Plaintiff's failure to appear at the scheduled EUOs permits Defendant to deny, retroactively, all claims going back to the date of loss (Unitrin Advantage Ins. Co. v Bayshore Physical Therapy PPLC et al, 82 AD3d at 560; Stephen Fogel Psychological PC v Progressive Casualty Ins. Co., 35 AD3d at 721-22), this Court need not reach the medical necessity arguments raised by the parties in their respective submissions.

Based on the foregoing, Defendant's summary judgment motion is GRANTED in its entirety, and the Clerk is directed to enter judgment granting the motion and dismissing the Complaint with prejudice.

Defendant is directed to serve a copy of this order, with notice of entry, upon Plaintiff within thirty (30) days of the entry date hereof.

This constitutes the decision and order of the Court.

John A. Howard-Algarin, J.

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