Concourse Chiropractic, PLLC v State Farm Mut. Ins. Co., 2013 NY Slip Op 52225(U)(App. Term 2d Dept. 2013)
“[w]e find that the affidavits submitted by defendant established that the examination under oath (EUO) notices had been timely sent to plaintiff (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Richard Morgan Do, P.C. v State Farm Mut. Auto. Ins. Co., 22 Misc 3d 134[A], 2009 NY Slip Op 50242[U] [App Term, 9th & 10th Jud Dists 2009]), and that plaintiff had failed to appear for the EUOs”
“The District Court correctly found that defendant demonstrated that the claims underlying these causes of action had been timely denied (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123) based on plaintiff’s nonappearance at the EUOs. In light of the foregoing, since plaintiff’s appearance at the EUOs “is a condition precedent to the insurer’s liability on the policy” (Stephen Fogel Psychological, P.C., 35 AD3d at 722; see also Insurance Department Regulations [11 NYCRR] § 65-1.1), the burden shifted to plaintiff to rebut defendant’s prima facie showing. However, as the District Court found, plaintiff did not respond in any way to the EUO scheduling letters sent by defendant. Since the opposing affirmation submitted by plaintiff’s counsel was insufficient to raise a triable issue of fact with respect to the claims denied on the ground that plaintiff had failed to appear at the EUOs“
