Judge Devin Cohen
GEICO moved for summary judgment dismissing the complaint, arguing it issued timely denials of provider Five Boro’s claims based on claimant’s failure to appear for two scheduled examinations under oath (EUOs). Plaintiff argued there was no reasonable basis for the EUO requests. The court noted the Appellate Term concluded where a plaintiff failed to respond to an insurer’s EUO requests, it “will not be heard to complain that there was no reasonable basis for the EUO request.” It also found plaintiff’s objection letters regarding the EUOs were mailed nearly 10 months after the initial request was issued, and about four months after the action was begun. The court ruled as an appearance at an EUO was a condition precedent to an insurer’s liability under a policy, and to the beginning of an action to recover under that policy, plaintiff was required to preserve its objection to the reasonableness of an EUO request before starting a suit. It stated a failure to object barred plaintiff from raising the objection as an excuse for claimant’s non-appearance at scheduled EUOs. Thus, as plaintiff violated the conditions precedent to its claim, GEICO’s motion was granted and the complaint dismissed.
