Nationwide Affinity Ins. Co. of Am. v. George

• Decision Date: 13 May 2020
• Docket Number: 2017–08494,Index 605673/16
• Citation: 183 A.D.3d 755,123 N.Y.S.3d 626
• Parties: NATIONWIDE AFFINITY INSURANCE COMPANY OF AMERICA, Respondent, v. Iesha GEORGE, et al., Defendants, Jamaica Wellness Medical, P.C., et al., Appellants.
• Court: New York Supreme Court — Appellate Division

183 A.D.3d 755

123 N.Y.S.3d 626

NATIONWIDE AFFINITY INSURANCE COMPANY OF AMERICA, Respondent,

v. Iesha GEORGE, et al., Defendants,Jamaica Wellness Medical, P.C., et al., Appellants.

2017–08494

Index 605673/16

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

Argued—December 16, 2019

May 13, 2020

Kopelevich & Feldsherova, P.C., Brooklyn, N.Y. (David Landfair of counsel), for appellants.

Hollander Legal Group, P.C. (Allan S. Hollander and Harris J. Zakarin, P.C., Melville, NY, of counsel), for respondent.

CHERYL E. CHAMBERS, J.P., SHERI S. ROMAN, JEFFREY A. COHEN, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

In an action for a judgment declaring that the plaintiff is not obligated to pay certain no-fault insurance benefits, the defendants Jamaica Wellness Medical, P.C., LVOV Acupuncture, P.C., and United Wellness Chiropractic, P.C., appeal from an order of the Supreme Court, Nassau County (James P. McCormack, J.), entered July 11, 2017. The order granted the plaintiff's motion for summary judgment, in effect, declaring that the plaintiff is not obligated to pay claims for no-fault insurance benefits submitted by the defendants Jamaica Wellness Medical, P.C., LVOV Acupuncture, P.C., and United Wellness Chiropractic, P.C., on behalf of the defendants Andy Williams, Amanda Nixon, and Shaquille Swan.

ORDERED that the order is affirmed, with costs, and the matter is remitted to the Supreme Court, Nassau County, for the entry of a judgment, inter alia, declaring that the plaintiff is not obligated to pay claims for no-fault insurance benefits submitted by the defendants Jamaica Wellness Medical, P.C., LVOV Acupuncture, P.C., and United Wellness Chiropractic, P.C., on behalf of the defendants Andy Williams, Amanda Nixon, and Shaquille Swan.

The defendants Andy Williams, Amanda Nixon, and Shaquille Swan (hereinafter collectively the individual defendants) allegedly were injured in a motor vehicle accident and assigned their rights to recover for no-fault benefits under the vehicle owner's insurance policy to the defendants Jamaica Wellness Medical, P.C., LVOV Acupuncture, P.C., and United Wellness Chiropractic, P.C. (hereinafter collectively the medical provider defendants). The plaintiff commenced this action for a judgment declaring that it is not obligated to pay claims for no-fault insurance benefits submitted by the medical provider defendants on behalf of the individual defendants on the ground that the individual defendants failed to appear for two scheduled examinations under oath (hereinafter EUOs). The plaintiff moved for summary judgment, in effect, declaring that the plaintiff is not obligated to pay claims for no-fault insurance benefits submitted by the medical provider defendants on behalf of the individual defendants. The medical provider defendants opposed the motion. In an order entered July 11, 2017, the Supreme Court granted the plaintiff's motion. The medical provider defendants appeal.

" ‘The failure to comply with the provision of an insurance policy requiring the insured to submit to an examination under oath ... is a material breach of the policy, precluding recovery of the policy proceeds’ " ( Interboro Ins. Co. v. Clennon, 113 A.D.3d 596, 597, 979 N.Y.S.2d 83, quoting Argento v. Aetna Cas. & Sur. Co., 184 A.D.2d 487, 487–488, 584 N.Y.S.2d 607 ). An insurer may establish its prima facie entitlement to judgment as a matter of law based on the failure to submit to an EUO by establishing that the letters scheduling the EUOs were timely and properly mailed, that the insured failed to appear at two scheduled EUOs, and that the insurer issued a timely and proper denial of the claims (see IDS Prop. Cas. Ins. Co. v. Stracar Med. Servs., P.C., 116 A.D.3d 1005, 1007, 985 N.Y.S.2d 116 ; Interboro Ins. Co. v. Clennon, 113 A.D.3d at 597, 979 N.Y.S.2d 83 ).

Here, the plaintiff established, prima facie, that the letters scheduling the EUOs were timely and properly mailed by submitting an affidavit from an individual who had personal knowledge of the standard office practice for ensuring that the letters are properly addressed and mailed (see Progressive Cas. Ins. Co. v. Metro Psychological Servs., P.C., 139 A.D.3d 693, 694, 32 N.Y.S.3d 182 ). In opposition, the medical provider defendants failed to raise a triable issue of fact because they did not submit any evidence that the letters were not properly mailed. The medical provider defendants' mere...