Presiding Justice Michael Pesce
Insurer Interboro appealed from a Civil Court order that denied its motion for summary judgment dismissing the complaint that sought to recover upon claims assigned to provider Ortho by Robinson and Forbes. Ortho sought to recover assigned first-party no-fault benefits and Interboro was denied summary judgment dismissing the complaint. A divided panel concluded Interboro established it timely denied the claims at issue as each assignor failed to appear for examinations under oath (EUO). It also established its EUO scheduling letters were timely mailed, but Robinson and Forbes failed to appear at either of their duly scheduled EUO. The divided panel ruled such an appearance at an EUO was a condition precedent to an insurer’s liability on a policy, concluding Ortho failed to raise a triable issue of fact. Thus, it reversed the order and granted Interboro’s motion to dismiss the complaint that sought to recover on claims assigned to Ortho by Robinson and Forbes. The dissent, however, noted it would affirm the order, arguing Interboro failed to submit evidence from someone with personal knowledge establishing the nonappearance of Robinson and Forbes for the scheduled EUOs, finding dismissal was properly denied.
