Opinion
15234, 151174/14.
09-15-2015
NATIONAL LIABILITY & FIRE INSURANCE COMPANY, Plaintiff–Appellant, v. TAM MEDICAL SUPPLY CORP., et al., Defendants–Respondents, Tatianna Joseph, et al., Defendants.
The Law Office of Jason Tenenbaum, P.C., Garden City (Jason Tenenbaum of counsel), for appellant. The Rybak Firm, PLLC, Brooklyn (Damin J. Toell of counsel), for respondents.
The Law Office of Jason Tenenbaum, P.C., Garden City (Jason Tenenbaum of counsel), for appellant.
The Rybak Firm, PLLC, Brooklyn (Damin J. Toell of counsel), for respondents.
Opinion
Order, Supreme Court, New York County (Manuel J. Mendez, J.), entered October 20, 2014, which, to the extent appealed from, denied plaintiff's motion for summary judgment against Tam Medical Supply Corp., Charles Deng Acupuncture, P.C., Action Potential Chiropractic, PLLC, Maiga Products Corporation, Pierre J. Renelique, MD, Maria Masiglia PT, and Gentlecare Ambulatory Anesthesia Services (the answering defendants), unanimously affirmed, with costs.
Plaintiff no-fault insurer moved for summary judgment declaring that its policy does not provide coverage to the individual defendant for the subject accident based on her failure to appear for scheduled examinations under oath (EUO). Although the failure of a person eligible for no-fault benefits to appear for a properly noticed EUO constitutes a breach of a condition precedent vitiating coverage (see Hertz Corp. v. Active Care Med. Supply Corp., 124 A.D.3d 411, 1 N.Y.S.3d 43 [1st Dept.2015] ; Allstate Ins. Co. v. Pierre, 123 A.D.3d 618, 999 N.Y.S.2d 402 [1st Dept.2014] ), here defendants-respondents, assignees of the defaulting individual defendant, opposed plaintiff's summary judgment motion on the ground that plaintiff had not established that it had requested the EUO within the time frame set by the no-fault regulations (see 11 NYCRR § 65–3.5 [b] ). In its reply, plaintiff failed to supply evidence bearing on whether the EUO had been requested within the appropriate time frame. Accordingly, plaintiff's motion for summary judgment was properly denied.
TOM, J.P., FRIEDMAN, SWEENY, SAXE, CLARK, JJ., concur.