Index No. 154496/2023, Motion Seq. No. 002. Supreme Court, New York County. Decided March 13, 2025.
I. Background
Plaintiff issued an automobile insurance policy to non-party Carlos Carrion (“Carrion”) insuring a 2005 Honda Pilot. Aviles was allegedly driving the Insured Auto on June 24, 2022, when she was involved in a motor vehicle accident with a phantom vehicle. Police were not called at the time of the accident, and Aviles reported the accident five days later on June 29, 2022. Aviles and Carrion were involved in another accident one month prior on May 28, 2022.
Aviles allegedly began receiving medical treatment related to the June 24, 2022 accident, and medical providers began billing Plaintiff for the treatment as early as August 5, 2022. After receiving those bills, Plaintiff requested Aviles appear for an EUO on September 9, 2022, but she failed to appear. Plaintiff requested Aviles appear for an EUO on October 4, 2022, but she again failed to appear. Based on Plaintiff’s failure to appear for two EUOs, Plaintiff disclaimed coverage and initiated this action seeking a declaratory judgment.
The only remaining active defendants are All City Family Healthcare Center, Inc., BL Pain Management PLLC, and MDCA Psychology Care (“Opposing Defendants”). Plaintiff now seeks summary judgment against the Opposing Defendants.
II. Discussion
Plaintiff’s motion for summary judgment is granted. It is well established that the failure to appear for two timely requested EUOs “is a breach of a condition precedent to coverage and voids the policy ab initio” (Unitrin Advantage Ins. Co. v. Dowd, 194 AD3d 507, 507 [1st Dept 2021]). The bar to coverage also applies to assignees of an insured (Unitrin Advantage Ins. Co. v. Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [1st Dept 2011]).
Here, an EUO request was mailed to Aviles just three days after receiving Aviles’ bill for treatment on August 5, 2022, making the request timely. The failure to appear at two timely requested EUOs vitiated the policy and allows Plaintiff to disclaim coverage for outstanding medical bills from treating providers and further obligations.
The Opposing Defendants’ arguments regarding the need for discovery fail to provide an affidavit from any individual with personal knowledge of the facts underlying the claim. The Opposing Defendants rely solely on an attorney affirmation to oppose Plaintiff’s motion. Therefore, Plaintiff’s motion is granted.
ORDER & JUDGMENT
ORDERED that Plaintiff State Farm Fire & Casualty Company’s motion for summary judgment against Defendants All City Family Healthcare Center, Inc., BL Pain Management PLLC, and MDCA Psychology Care based on their assignor, Defendant Lydia Aviles’ failure to appear for examinations under oath is GRANTED; and it is further
ORDERED, ADJUDGED, and DECLARED that:
- STATE FARM FIRE AND CASUALTY COMPANY is not required to pay any Mandatory Personal Injury Protection (No-Fault) benefits to the Answering Defendants in connection with the June 24, 2022, alleged loss under claim number 32-36Q4-60P.
- Any such lawsuits and/or arbitrations seeking to recover for this loss are hereby dismissed in accordance with this order.
ORDERED that the Clerk is directed to enter judgment as against the ANSWERING DEFENDANTS, ALL CITY FAMILY HEALTHCARE CENTER, INC, BL PAIN MANAGEMENT PLLC, and MDCA PSYCHOLOGY CARE.