American Tr. Ins. Co. v Cartagena, 2014 NY Slip Op 31696(U)(Sup. Ct. NY Co. 2014)
“Plaintiff AMERICAN TRANSIT INSURANCE COMPANY in this declaratory judgment action moves for a summary judgment for the relief demanded in the Complaint pursuant to CPLR 3212 in its favor against defendant LONGEVITY MEDICAL SUPPLY, INC. based upon the failure to provide duly scheduled “Examinations Under Oath” of defendant assignor REMANSIA CARTAGENA, an individual who
assigned to defendant LONGEVITY MEDICAL SUPPLY, INC., a medical/health care provider, his/her right to be reimbursed for benefits under the No-Fault law~ for the expenses of treatment for injuries suffered in an automobile accident on November 20, 2011.
As held by the First Department in Unitrin Advantage Ins Co v Bayshore Physical Therapy, 82 AD3d 559, 560 (1st Dept 2011): The failure to appear for [EUOs] requested by the insurer ” … as … may reasonably [be] require[d]” (Insurance Department Regulations [11 NYCRR] § 65-1.1) is a breach of a condition precedent to coverage under the no-fault policy, and therefore fits squarely within the exception to the preclusion doctrine, as set forth in Central Gen. Hosp. v Chubb Group of Ins. Cos. ( 90 NY2d 195 · [1997] ) .
As in Unitrin, here “plaintiff has satisfied its prima facie burden on summary judgment of establishing that it requested (EUOs) in accordance with the procedures and time frames set forth in the no-fault implementing regulations, and that defendants’ assignors did not appear. In opposition, defendants failed to raise an issue of fact that the requests were unreasonable”. “The affidavit of service raised a presumption that a·proper mailing occurred, which defendants failed to rebut” (American Transit Insurance Company v Marte-Rosario, 11 AD3d 442 [1st Dept 2013]) . Finally, Cambridge Medical, P.C. v Progressive Casualty Ins. Co., 29 Misc3d 186 (NYC Civil Co, Richmond Co 2010), an opinion of coordinate jurisdiction not binding on this court, stands only for the proposition that under 11 NYCRR 65-3.6, the insurer may send the notice for follow up verification to the insurer, as assignee, and is not required to so notice the injured party. In addition, Cambridge interprets a rule separate from 11 NYCRR 65-1.1 with respect to Examinations Under Oath (EUO), the rule at issue here”
The Defendant walked into oral argument according to my report with a case called Cambridge v. Progressive and said that our Dec action was invalid. I barely recalled Judge Levine’s case as she writes so many. I look it up and told my attorney if the judge was considering this act of desperation. He laughed. I am glad the judge realized this was smoke in mirrors.
