Opinion
11809 Index 155881/16
07-09-2020
KEMPER INDEPENDENCE INSURANCE COMPANY, Plaintiff–Appellant, v. CORNERSTONE CHIROPRACTIC, P.C., et al., Defendants, JS Medical, P.C., et al., Defendants–Respondents.
Goldberg, Miller & Rubin, P.C., New York (Timothy R. Bishop of counsel), for appellant.
Goldberg, Miller & Rubin, P.C., New York (Timothy R. Bishop of counsel), for appellant.
Friedman, J.P., Renwick, Gische, Mazzarelli, Moulton, JJ.
Order, Supreme Court, New York County (Barbara Jaffe, J.), entered December 20, 2018, which denied plaintiff's motion for summary judgment declaring that defendants JS Medical, P.C. and Wert Specialty Orthopedics, P.C. (together, defendants) have no right to collect no-fault benefits from plaintiff with respect to the subject accident, and granted defendants' cross motion for summary judgment to the extent of dismissing the complaint as against JS, unanimously reversed, on the law, without costs, plaintiff's motion granted and defendants' motion denied, and it is declared that defendants have no right to collect said no-fault benefits.
The claimants' failure to subscribe and return the transcripts of their examinations under oath (EUOs) violated a condition precedent to coverage and warranted denial of the claims (see Hereford Ins. Co. v. Forest Hills Med., P.C., 172 A.D.3d 567, 98 N.Y.S.3d 738 [1st Dept. 2019] ). This is so notwithstanding plaintiff's failure to present proof of proper delivery of the denials (see Unitrin Advantage Ins. Co. v. Bayshore Physical Therapy, PLLC, 82 A.D.3d 559, 560, 918 N.Y.S.2d 473 [1st Dept. 2011], lv denied 17 N.Y.3d 705, 2011 WL 2535157 [2011] ). Plaintiff is entitled to summary judgment on the additional ground that defendants failed to appear at two scheduled EUOs (see Hertz Vehs. LLC v. Significant Care, PT, P.C., 157 A.D.3d 600, 70 N.Y.S.3d 5 [1st Dept. 2018] ; Mapfre Ins. Co. of N.Y. v. Manoo, 140 A.D.3d 468, 33 N.Y.S.3d 54 [1st Dept. 2016], appeal withdrawn 29 N.Y.3d 995, 57 N.Y.S.3d 716, 80 N.E.3d 409 [2017] ). Considering the brevity of the delay and JS's ultimate failure to appear, we find that plaintiff's "one-day tardiness in issuing its follow-up request for the EUO scheduled for" JS was "a technical defect excusable under 11 NYCRR 65–3.5(p)" ( Z.M.S. & Y. Acupuncture, P.C. v. Geico Gen. Ins. Co., 56 Misc.3d 926, 930, 56 N.Y.S.3d 807 [Civ. Ct., Kings County 2017] ).