Two no-fault decisions from App. Term. 1st

Dover Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 2010 NY Slip Op 51605(U) (App. Term, 1st 2010)

Defendant-insurer made a prima facie showing of entitlement to judgment as a matter of law dismissing the complaint by establishing that it mailed the notices requiring the principal of plaintiff medical services provider to appear for an examination under oath (EUO) and that the principal failed to appear for such an examination (see generally Marina v Praetorian Ins. Co., 28 Misc 3d 132[A], 2010 NY Slip Op 51292[U] [2010]). In opposition, plaintiff failed to raise a triable issue, and its arguments in opposition to defendant's motion are unpersuasive. Defendant was not required to produce the applicable automobile insurance policy in order to establish that the mandatory personal injury endorsement included an EUO provision, since the subject claim arose out of an accident that occurred in 2007, at a time when the policy necessarily would have contained such a provision (see Eagle Chiropractic, P.C. v Chubb Indem. Ins. Co., 19 Misc 3d 129[A], 2008 NY Slip Op 50525[U]; cf. SZ Med. P.C. v State Farm Mut. Auto. Ins. Co., 9 Misc 3d 139[A], 2005 NY Slip Op 51842[U] [2005]). In any event, even assuming, arguendo, that the policy did not contain an EUO provision, the policy would be construed as though it did (see Insurance Law § 5103[h]). Moreover, contrary to Civil Court's conclusion, an EUO need not be scheduled within 30 days of defendant-insurer's receipt of the claim (see Eagle Surgical Supply Inc. v Progressive Cas. Ins. Co., 21 Misc 3d 49 [2008]). Thus, defendant was entitled to summary judgment dismissing the complaint based upon plaintiff's failure to comply with a condition precedent to coverage (see generally Inwood Hill Med., P.C. v General Assur. Co., 10 Misc 3d 18 [2005]).

Socrates Med. Health, P.C. v Motor Veh. Acc. Indem. Corp., 2010 NY Slip Op 51606(U) (App. Term, 1st 2010)

Plaintiff made a prima facie showing of entitlement to judgment as a matter of law by submitting evidentiary proof that the prescribed statutory billing form had been mailed and received, and that payment of no-fault benefits was overdue (see New York Hosp. Med. Ctr. of Queens v Motor Veh. Acc. Indem. Corp., 12 AD3d 429 [2004], lv denied 4 NY3d 705 [2005]). We note in this connection that the affidavit of plaintiff's employee attesting to plaintiff's standard office mailing procedures created a presumption of mailing of the subject claim, and, in any event, defendant acknowledged receipt of the claim (see Fair Price Med. Supply Inc. v St. Paul Travelers Ins. Co., 16 Misc 3d 8 [2007]). In opposition, defendant, which bore the burden of proving its lack of coverage defense (see Matter of MVAIC v Interboro Med. Care & Diagnostic, PC, 73 AD3d 667 [2010]), failed to raise a triable issue on this point, since it offered no competent evidence showing that the plaintiff's assignor's loss arose from the use or operation of an uninsured motor vehicle (see Insurance Law § 5221[b]).

We reject defendant's contention that, pursuant to Insurance Law § 5225, it is exempt from paying plaintiff "statutory interest, statutory attorneys' fees and costs," since the plain language of that statute only exempts defendant from paying certain "taxes and fees" imposed by state and local governments. Defendant's remaining contentions are unpreserved for appellate review, and, in any event, are without merit.

In the MVAIC case, the § 5225 argument was absolute nonsense.  In a sort of related note, I'm looking for the case that says MVAIC gets an automatic stay on appeals.