Recitation, as required by CPLR 2219(a), of the papers read on defendant’s motion for summary judgment and dismissal, and on plaintiff’s cross-motion for summary judgment. Papers Numbered Notice of Motion, Affirmation, Exhibits 1 Notice of Cross-Motion, Affirmation, Exhibits 2 Affirmation in 3 Reply Affirmation 4 DECISION/ORDER Upon the foregoing papers, and a conference/oral argument, it is ordered that this motion is determined as follows: Defendant’s motion for summary judgment and to dismiss plaintiff’s Complaint on the grounds that plaintiff-assignor failed to appear for four duly and timely scheduled examinations under oath is granted in its entirety, and plaintiff’s cross-motion is denied. Plaintiff’s argument that defendant failed to establish timely denial, in that denial exceeded the thirty-day time period from the second EUO no show, is unpersuasive and outmoded in light of the Appellate Division’s recent decision in Quality Health Supply Corp. v. Nationwide Insurance (216 AD3d 1013 [2d Dept 2023]), reversing a decision of the Appellate Term (see Quality Health Supply Corp. v. Nationwide Ins., 69 Misc3d 133(A), 2020 NY Slip Op 51226(U) [App Term, 2d Dept 2d, 11th & 13th Jud Dists 2020]). This court has struggled with this issue in the past. Despite that the earlier Quality Health held that “the 30-day period for an insurer to pay or deny a claim based upon a failure to appear for an EUO begins to run on the date of the second EUO nonappearance…” (69 Misc3d 133(A) at *1), this court found that a timely denial issued after a fourth missed EUO was sufficient to support defendant’s request for summary judgment (see NGM Acupuncture, P.C. v. Nationwide Ins. Co., Civ Ct, Queens County, Decision/Order, June 15, 2021, index no. 706015/2019). This court reasoned that to hold otherwise puts defendants at a disadvantage for offering plaintiffs additional opportunities to appear for an EUO, and disincentivizes diligent and thorough investigations. Even more so, that it gave plaintiffs an advantage if they did appear at a third or fourth scheduled EUO. Following the earlier Quality Health, the Appellate Term issued a decision in FJL Medical Services, P.C. v. Nationwide Insurance (77 Misc3d 129(A), 2022 NY Slip Op 51213(U) [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]) that addressed this issue in a more comprehensive fashion. FLJ essentially confirmed the finding of the Appellate Term in Quality Health. It reasoned that “an insurer cannot indefinitely extend its toll of the time to pay or deny a claim after a second nonappearance at a scheduled EUO by scheduling successive additional EUOs until the insurer unilaterally decides that it has offered enough opportunities to appear and end its toll (id at *2-3). Disregarding defendant’s arguments based upon the regulations and rooted in fairness principals, the court framed the issue as whether an insurer properly continued its toll period to pay or deny a claim, instead of whether a provider or insured appeared for a duly scheduled and/or rescheduled EUO. Although this court continued to disagree with the premise expressed in Quality Health and expounded upon in FLJ, in light of that later decision, this court capitulated and denied a defendant’s motion contemplating the same issue discussed here (see Access Care PT, P.C. v. Palisades Ins. Co., Civ Ct, Queens County, Decision/Order, March 7, 2023, index no. 719465/2021). Having to contend with its prior decisions, this court is being asked to, again, consider this issue. However, now it has the Appellate Division’s decision in Quality Health which, arguably, endorses this court’s earlier opinion in NGM Acupuncture (supra). In reversing the Appellate Term, the Appellate Division found that a denial for non-appearance issued after the last scheduled EUO, and in that case there were three, was timely and proper (see Quality Health Supply Corp., 216 AD3d at 1013). With this in mind, the court finds here that defendant demonstrated its prima facie entitlement to judgment as a matter of law dismissing plaintiff’s Complaint by showing that its scheduling letters were timely and properly mailed, that the assignor failed to appear on each of the four scheduled dates, and that it ultimately issued a timely and proper denial following a failure to appear on the last scheduled date (see e.g. Quality Health Supply Corp., 216 AD3d 1013). It is noteworthy that plaintiff did not deny receipt of the scheduling letters or that the assignor failed to appear on all four occasions. Actually, plaintiff highlighted that it responded to defendant’s scheduling letters by objecting to the location of the EUO but, also, expressing its assignor’s willingness to attend. Despite these responses, plaintiff seeks to penalize defendant for extending multiple opportunities to its assignor to appear. The contradictory nature of this argument and its effect of placing insurers in a problematic position is evident. Most importantly, and what this court believes was previously overlooked, is that failure to appear for an EUO is a condition precedent to coverage (see generally Nationwide Affinity Ins. Co. of Am. v. George, 183 AD3d 755, 756 [2d Dept 2020]; Stephen Fogel Psychological, P.C. v. Progressive Cas. Ins. Co., 35 AD3d 720, 722 [2d Dept 2006]; Excel Imaging, P.C. v. Infinity Select Ins. Co., 46 Misc2d 128(A) [2d Dept, 2d, 11th and 13th Jud Dists 2014]). By circumventing this principal, and virtually ignoring the EUO nonappearances, form prevailed over substance. The most recent Quality Health rectifies this imbalance and, also, promotes the mandate of the no-fault regulations prohibiting insurers from treating their insureds in an adversarial fashion (see 11 NYCRR 65-3.2[b]; see also NGM Acupuncture, P.C. v. Nationwide Ins. Co., supra). Ultimately, a plaintiff’s failure to appear for a duly scheduled EUO, barring any issues of timeliness, should be the predominate consideration in disputes such as the one before this court. Plaintiff’s complaint is hereby dismissed. The foregoing constitutes the decision and order of the court. Dated: June 30, 2023
