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Active Care Medical Supply Corp. v. ELRAC Inc.

Notice of Assignor's Inability to Appear at First Scheduled Examination Under Oath Did Not

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DECISION AND ORDER AFTER TRIAL

*1 A bench trial was commenced and completed on November 13, 2017. In this action by a provider to recover assigned first-party no-fault benefits, the burden was on Defendant to show timely mailing of the notices of examinations under oath and the failure of the assignor to attend the scheduled examinations under oaths.When an issue involves an examination under oath, a defendant must prove that its examinations under oath requests were timely mailed and that a plaintiff’s assignor failed to appear for same (see Crescent Radiology, PLLC v. American Transit Ins. Co., 31 Misc 3d 134[A] [App Term 2d Dept 2011]). When a party who is required to appear fails to attend a scheduled examination under oath, the insurer must contact the party within 10 days in order to afford the party a second opportunity to attend an examination under oath. (11 NYCRR 65-3.6[b]). If the party fails to appear at the rescheduled examination under oath, an insurer may issue a denial of pending claims based upon the failure to meet the condition for coverage.It is well settled that an appearance at an examination under oath or independent medical examination “is a condition precedent to the insurer’s liability on the policy” and an insurer can deny a claim retroactively to the date of loss for a claimant’s failure to attend an examination

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