Allstate Ins. Co. v. Pierre

• Decision Date: 23 December 2014
• Docket Number: 13829, 304472/12
• Citation: 999 N.Y.S.2d 402,2014 N.Y. Slip Op. 08921,123 A.D.3d 618
• Parties: ALLSTATE INSURANCE COMPANY, Plaintiff–Respondent, v. Jean Eddy PIERRE, et al., Defendants, Adelaida Laga Pt, et al., Defendants–Appellants.
• Court: New York Supreme Court — Appellate Division

123 A.D.3d 618

999 N.Y.S.2d 402

2014 N.Y. Slip Op. 08921

ALLSTATE INSURANCE COMPANY, Plaintiff–Respondent

v. Jean Eddy PIERRE, et al., DefendantsAdelaida Laga Pt, et al., Defendants–Appellants.

13829, 304472/12

Supreme Court, Appellate Division, First Department, New York.

Dec. 23, 2014.

The Rybak Firm, PLLC, Brooklyn (Damin J. Toell of counsel), for appellants.

Freiberg, Peck & Kang, LLP, Armonk (Yilo J. Kang of counsel), for respondent.

TOM, J.P., FRIEDMAN, RENWICK, MANZANET–DANIELS, KAPNICK, JJ.

Opinion

Order, Supreme Court, Bronx County (Alison Y. Tuitt, J.), entered July 18, 2013, which granted plaintiff insurer's motion for summary judgment declaring that defendants-appellants are not entitled to no-fault benefits, unanimously modified, on the law, solely to declare that defendants-appellants are not entitled to no-fault benefits, and otherwise affirmed, without costs.

Plaintiff established that defendants are not entitled to no-fault benefits because their assignors failed to appear at scheduled examinations under oath (EUOs). This Court in Unitrin Advantage Ins. Co. v. Bayshore Physical Therapy, PLLC, 82 A.D.3d 559, 918 N.Y.S.2d 473 (1st Dept.2011), lv. denied 17 N.Y.3d 705, 2011 WL 2535157 (2011) held that the failure to submit to requested independent medical examinations (IMEs) constitutes a breach of a condition precedent to coverage under a no-fault policy and voids coverage regardless of the timeliness of the denial of coverage (id. at 560 ). Although the instant case involves the failure to appear at EUOs, and not IMEs, this Court's holding in Unitrin applies to EUOs (see e.g. Interboro Ins. Co. v. Perez, 112 A.D.3d 483, 483, 976 N.Y.S.2d 378 [1st Dept.2013] ; Seacoast Med., P.C. v. Praetorian Ins. Co., 38 Misc.3d 127, 2012 WL 6685550 [A] [App.Term, 1st Dept.2012]; Interboro Ins. Co. v. Clennon, 113 A.D.3d 596, 597, 979 N.Y.S.2d 83 [2d Dept.2014] ). Defendants do not dispute that their assignors failed to appear at their first EUOs, and plaintiff established, through admissible evidence, that the assignors failed to appear at their second EUOs (see Arco Med. N.Y., P.C. v. Metropolitan Cas. Ins. Co., 41 Misc.3d 140[A], 2013 N.Y. Slip Op 52001[U], *2, 2013 WL 6360637 [App.Term, 2d Dept.2013] ; Quality Psychological Servs., P.C. v. Interboro Mut. Indem. Ins. Co., 36 Misc.3d 146 [A], 2012 N.Y. Slip Op 51628 [U], 2012 WL 3733575 [App.Term, 2d Dept.2012] ). Plaintiff also established that the statements on the record were business records (see e.g. People v. Cratsley, 86 N.Y.2d 81, 90–91, 629 N.Y.S.2d 992, 653 N.E.2d 1162 [1995] ; One Step Up, Ltd. v. Webster Bus. Credit Corp., 87 A.D.3d 1, 11–12, 925 N.Y.S.2d 61 [1st Dept.2011] ). Although plaintiff was required to show (and did show) that the assignors each failed to appeared at two EUOs (see DVS Chiropractic, P.C. v. Interboro Ins. Co., 36 Misc.3d 138[A], 2012 N.Y. Slip Op 51443[U], *2, 2012 WL 3139771 [App.Term, 2d Dept.2012] ), plaintiff was not required to demonstrate that the assignors' nonappearances were willful (see Unitrin, 82 A.D.3d at 561, 918 N.Y.S.2d 473 ).

Defendants' argument that plaintiff failed to establish that it had mailed the EUO notices to the assignors' correct addresses is unpreserved (see e.g. Ta–Chotani v. Doubleclick, Inc., 276 A.D.2d 313, 313, 714 N.Y.S.2d 34 [1st Dept.2000] ) and unavailing (see American Tr. Ins. Co. v. Leon, 112 A.D.3d 441, 442, 975 N.Y.S.2d 875 [1st Dept.2013] ). Similarly, their argument that plaintiff waived the defense of the assignors' nonappearance because plaintiff did not establish that it ever denied defendants' claims is unpreserved (see 276 A.D.2d at 313, 714 N.Y.S.2d 34 ). In any event, the argument is unavailing, as defendants' own verified answer alleged that plaintiff had denied their claims.

Defendants failed to show that summary judgment is premature due to outstanding discovery (see Interboro, 113 A.D.3d at 597, 979 N.Y.S.2d 83 ).

We modify the court's order solely to make a declaration in plainti...