For plaintiff: Oleg Rybak Esq., The Rybak Firm 1810 Voorhies Ave, 3rd Fl., Suite 7 Brooklyn, NY 11235 For defendant: Allan Hollander, Esq. Bruno, Gerbino & Soriano, LLP 445 Broad Hollow Road, Suite 220 Melville, NY 11747
For plaintiff: Oleg Rybak Esq., The Rybak Firm 1810 Voorhies Ave, 3rd Fl., Suite 7 Brooklyn, NY 11235 For defendant: Allan Hollander, Esq. Bruno, Gerbino & Soriano, LLP 445 Broad Hollow Road, Suite 220 Melville, NY 11747 Odessa Kennedy, J.
RECITATION, AS REQUIRED BY CPLR 2219 (A) OF THE PAPERS CONSIDERED IN THE REVIEW OF THIS MOTION:
Notice of Motion 1
Notice of Cross-Motion 2
In an action to recover first party no fault benefits, defendant moves for summary judgment based on plaintiff's alleged failure to appear for an examination under oath ("EUO"). Plaintiff cross-moves for summary judgment pursuant to CPLR 3212(a), or in the alternative, for an order finding that the bills at issue were mailed to and received by defendant pursuant to 3212(g).
Defendant received plaintiff's bills on October 17, 2016; and on November 14, 2016, sent plaintiff a letter scheduling an EUO for December 20, 2016.
In a letter to defendant dated December 8, 2016, plaintiff's counsel represents plaintiff is unavailable to attend the EUO in December, due to the holidays, and demands defendant to provide reasonable basis for the EUO. Defense counsel proceeds with the EUO on December 20, 2016, as scheduled, and places a statement on the record regarding plaintiff's non-appearance.
On December 27, 2016, defendant sends a follow up letter to plaintiff's counsel, rescheduling the EUO to February 22, 2017. Defendant attends the EUO and places a statement on the record that plaintiff failed to appear.
On February 23, 2017, defendant mails a third letter, scheduling the EUO for April 17, 2017. In an April 7, 2017 letter, plaintiff's counsel objects to the EUO, based on defendant's failure provide good cause for the EUO.
On April 17, 2017, defendant appears for the EUO, and places a statement on the record that plaintiff did not attend the EUO.
On April 19, 2017, defendant sends a final letter, scheduling the EUO for June 14, 2017. Defendant attends the EUO and places a statement on the record that plaintiff did not appear.
On June 27, 2017, defendant denies the bills based on plaintiff's failure to attend an EUO, which it contends, absolves defendant of the responsibility to provide coverage.
The first issue is whether defendant established plaintiff's failure to appear at an EUO as a matter of law.
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]).
Moreover, contrary to plaintiff's contention, defendant is not required to provide plaintiff the basis for requesting an EUO to establish its prima facie entitlement to summary judgment. (see Parisien v Metlife Auto & Home, 54 Misc 3d 143(A), 54 N.Y.S.3d 611, 2017 NY Slip Op 50208(U) [App Term, 2nd Dept , 2d, 11th & 13th Jud Dists 2017]; Barakat Medical Care, P.C. v Nationwide Ins. Co., 49 Misc 3d 147(A), 26 N.Y.S.3d 723, 2015 NY Slip Op 51677(U) [App Term, 2nd Dept, 2d, 11th & 13th Jud Dists 2015]).
To demonstrate entitlement to summary judgement based on a provider's failure to appear for an EUO, defendant must only prove 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 four EUOs scheduled. However, to establish entitlement to summary judgment, defendant must prove that plaintiff failed to provide valid reasons for not attending the EUO. (See Active Care Med. Supply Corp. v MetLife Auto & Home, 59 Misc 3d 147[A], 2018 Slip Op 50772[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]).
As to the December 20, 2017, plaintiff contended it was unavailable to attend due to the holidays. Nevertheless, defendant proceeded with the scheduled EUO, and claimed plaintiff's non-appearance was unjustified, absent proof that plaintiff's unavailability due to the holidays, was not a valid reason for its non-appearance. Thus, whether plaintiff's alleged unavailability during the holidays justified its non-appearance at the EUO, is an issue of fact. By contrast, has not proffered a reason for its alleged non-appearance at the February 22, 2016 EUO. Yet, to establish entitlement to summary judgment, defendant must establish by admissible evidence that plaintiff did not appear at the EUO.
To establish plaintiff's non-appearance, defendant relies on counsel's February 22, 2017 statement on the record, that as of 12:00 pm, plaintiff had not appeared for the 11:00 A.M. scheduled EUO. Yet, omitted from the statement, is whether counsel arrived at the EUO by 11:00 AM, which if proven, would preclude the possibility of plaintiff having arrived and left the EUO prior to counsel's arrival. Likewise, at the April 17, 2017 EUO, counsel places plaintiff's non-appearance on the record, without stating her arrival time. Absent proof of counsel's timely arrival at the EUOs, plaintiff's non-appearance is an issue of fact.
Defendant's failure to show that the reason provided by plaintiff for its unavailability at the December 20, 2016 EUO was invalid, and plaintiff's non-appearances at the February 22, 2016 and April 17, 2017 EUOs, warrants denial of summary judgment, regardless of plaintiff's non-appearance at the June 14, 2017 EUO, which, if proven, would be only one of the two non-appearances defendant must establish.
Yet, the court notes that at the June 14, 2017 EUO, counsel again places plaintiff's non-appearance on the record but not her arrival time. To cure the deficiency, however, counsel submits an August 18, 2017 affirmation, based on her "knowledge and review of the file," stating she arrived at the June 14, 2017 EUO "about one-hour" early. As counsel's review of the file partially forms the basis of the affirmation attesting to counsel's arrival time, a question of fact arises as to whether her arrival time is based on memory or review of documents. Moreover, the failure to identify the documents forming the basis of counsel's August 18, 2018 affirmation, precludes judicial assessment of the accuracy and reliability of the documents, and thus, the affirmation.
To show entitlement to summary judgment, in addition to proving plaintiff's twice inexcusable EUO non-appearances, defendant must show that the EUO scheduling letters, and defendant's denials, were properly mailed to the plaintiff, which may be established through evidence of an office procedure designed to ensure the documents are properly mailed to the correct recipient. (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 demonstrate sufficiency of its mailing procedures, defendant submits an affidavit, which states the mailing room personnel place the documents into a "mailing machine" that "reads a unique bar code generated by the system to separate documents and then places the documents in a windowed envelop and appropriate postage is affixed."
The affidavit is deficient, however, as it fails to specify how and by whom the names and proper addresses of the recipients are obtained, stored, generated and placed on envelopes, or practices to ensure that envelopes are correctly addressed. Rather, the affidavit elusively states "the machine reads a unique bar code generated by the system to separate documents," absent clarity or substance.
Based on the foregoing, defendant failed to eliminate all triable issues of fact in connection with establishing plaintiff's twice unjustified non-appearances at the EUO, and 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 ), its motion is denied.
Plaintiff's cross-motion for summary judgement pursuant to CPLR 3212(a) is further denied as plaintiff failed to meet its burden to demonstrate the defendant had failed to deny the claims within the requisite 30-day period, or that defendant's denials were conclusory, vague or without merit as a matter of law (see Insurance Law section 5106[a]; Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168, 911 N.Y.S.2d 907, 2010 NY Slip Op 08933 [2d Dept 2010]).
Plaintiff's cross-motion for summary judgment pursuant to CPLR 3212(g) is granted to the extent of the finding that the bills at issue were mailed to and received by defendant and remain unpaid. Dated: December 5, 2018 ______________________ ODESSA KENNEDY Judge of the Civil Court