Recitation, as required by CPLR §2219(a) of the papers considered in review of this Motion: Papers Notice of Motion and Affidavits Annexed 1 Cross Motion and Affidavits Annexed 2 Answering Affidavits 3 Replying Affidavits Other DECISION AND ORDER Upon the foregoing cited papers, the Decision/Order on Defendant’s Motion for Summary Judgment and Plaintiff’s Cross Motion for Summary Judgment is decided as follows: It is well settled that a proponent for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact, (see CPLR §3212[b]; Zuckerman v. City of New York, 49 N.Y.2d 557, 562 [1980]; see also Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324 [1986], Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 852 [1985], Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 404 [1957]). A moving defendant seeking summary judgment to dismiss the complaint based upon failure to appear for an Examination Under Oath (hereinafter “EUO”) must show timely mailing of the EUO scheduling letters and that the assignee, in fact, failed to appear, (see 11 NYCRR. 65-1.1, Nationwide Affinity Ins. Co. of America v. George, 183 AD3d 755, 756 [2nd Dept. 2020). Defendant did so here. Defendant established that it scheduled plaintiff's EUO four times by letters dated, 10/26/17, 1/10/18, 3/26/18, and 5/25/18 for EUOs noticed for 1/8/18, 3/20/18, 5/23/18, and 7/12/18 respectively. Defendant also established that plaintiff failed to appear at each of the noticed EUOs. Moreover, defendant demonstrated that plaintiff repeatedly sent letters to counsel for Nationwide stating that it needed two additional months to appear for the EUO, while requesting an explanation regarding the basis of the EUO and impermissibly demanding a $3,500.00 appearance fee per claimant to appear at the noticed Examinations Under Oath. The said letters were sent on 12/27/17 (in relation to the 1/8/18 EUO), 3/16/18 (in relation to the 3/20/18 EUO), 5/9/18 and 5/21/18 (in relation to the 5/23/18 EUO), and 6/28/18 (in relation to the 7/12/18 EUO). Each of the aforementioned letters were sent within days or weeks of the respective scheduled EUOs although each EUO request provided nearly two months' notice as per plaintiff's request to accommodate plaintiff's claim that it had a busy calendar. Despite repeatedly claiming to be unavailable to attend the EUO and successfully obtaining two months adjournment, plaintiff failed to submit an affidavit of an individual with personal knowledge to establish its unavailability on any of the dates the EUO was noticed for or an affidavit attesting to any date it provided defendant that plaintiff would be available to appear. The purpose of the No Fault Law and Regulations, Insurance Law 5102, et. seq and 11 NYCRR Part 65, is to ensure prompt payment of medical claims for treatment provided to people injured in automobile accidents regardless of fault. If an EUO is requested as additional verification an insurer must schedule it within a reasonable time frame and as "expeditiously as possible." Eagle Surgical Supply, Inc. v. Progressive Cas. Ins. Co., 21 Misc3d 49, 51 (2d Dept 2008). Plaintiff frustrated the intent of the no fault regulation by attempting to delay the claim over a period of nine months by claiming it needed two months' notice for each noticed EUO, thereafter receiving two months' notice of the EUOs and then continuing to claim they were unavailable and further, without authority, requiring $3500 for the appearance. The record demonstrates that plaintiff failed to appear for EUOs scheduled on four occasions, 1/8/18, 3/20/18, 5/23/18, and 7/12/18. Moreover, the record demonstrates that although Defendant Nationwide attempted to accommodate plaintiff by noticing the EUO four times at plaintiff's request, plaintiff nonetheless failed to appear for any of the noticed EUOs. The last scheduled EUO was for 7/12/18 and the claims were timely denied on 7/19/18. Both parties were given an opportunity to orally argue this motion, at which time plaintiff raised the issue of a timely denial based on a recent case, Quality Health Supply Corp. v. Nationwide Ins., (69 Misc3d 133(A) (App Term, 2nd Dept, 2nd & 11th Judicial Dists, 2020]). It appears that Quality Health stands for the proposition that a denial issued more than thirty 30 days after the second EUO no show, despite the scheduling of subsequent EUOs, is untimely. In Quality Health, the record before the Court failed to establish that there were any objections to the EUO request and/or requests seeking an adjournment or postponement of the EUO. The Court finds that the case herein is distinguishable from Quality Health because the defendant herein demonstrated to the Court that plaintiff requested that defendant Nationwide notice the EUO additional times, and that defendant in good faith was attempting to accommodate plaintiff’s request by rescheduling the EUOs. Defendant has submitted sufficient proof to demonstrate that plaintiff failed to appear at four duly scheduled EUOs and therefore, failed to comply with a condition precedent to coverage. The plaintiff failed to provide evidence to rebut defendant’s showing. Plaintiff’s contention that defendant is unable to establish the 1/8/18 no-show as the transcript states a time of 11:45 PM (as opposed to 11:45 AM), lacks merit. The Court finds that the EUO was noticed for 11:00 AM and that the affidavit of Allan Hollander stated that the scheduled start time of the EUO was 11:00 AM. This is an obvious error in the transcript. Further, the 12/27/17 correspondence from The Rybak Firm, PLLC, confirmed that FJL Medical Services, P.C. would “be unavailable to appear for the requested EUO currently scheduled for January 8, 2018″. The Court finds that the error in the transcript is insignificant to raise a triable issue of fact. In light of the above, defendant’s motion for summary judgment is granted and plaintiff’s complaint is hereby dismissed. This constitutes the decision and order of the Court. Dated: July 28, 2021
