High Definition MRI, P.C. v Travelers Cos., Inc., 2016 NY Slip Op 02027 (1st Dept. 2016)
(1) “Here, the complaint standing alone failed to apprise defendant insurance companies of basic pertinent information to put them on notice of the claims against them, such as the patients treated and the insurance policies issued by defendant, under which plaintiff submitted claims for treatment rendered. However, in opposition to defendant insurance companies’ motion to dismiss, plaintiff submitted an affidavit from its principal with an exhibit attached providing such information. Thus, the complaint and affidavit submitted in opposition sufficiently apprise defendant insurance companies of the “transactions, occurrences, or series of transactions” that form the basis of the complaint (CPLR 3013).”
(2) “Contrary to defendant insurance companies’ further contention, the complaint sufficiently alleges that plaintiff is the assignee of claims under the policies issued by defendant insurance companies. Defendant insurance companies’ further contention that plaintiff failed to appear for [*2]examinations under oath, which is a condition precedent to coverage (Hertz Corp. v Active Care Med. Supply Corp., 124 AD3d 411 [1st Dept 2015]), presents a factual issue not amenable to resolution on a motion to dismiss pursuant to CPLR 3211(a)(7).”
Two points to see in this case. First, a motion to dismiss for breach of no-fault contract requires that the pleader allege the person on whose behalf the contract is breached. Second, the propriety of an EUO no-show defense is inappropriate on a motion to dismiss.
