Flatlands Med., P.C. v State Farm Mut. Auto. Ins. Co., 2013 NY Slip Op 50071(U)(App. Term 2d Dept. 2013)
(1) In this action by a provider to recover assigned first-party no-fault benefits, defendant moved, pursuant to CPLR 3211, to dismiss the complaint on the ground that plaintiff had failed to satisfy a condition precedent to coverage by not appearing for scheduled examinations under oath (EUOs). The Civil Court gave notice to the parties that it would treat the motion as a motion for summary judgment dismissing the complaint (see CPLR 3211 [c]) and subsequently granted defendant’s motion.
(2) “Plaintiff’s objections regarding the EUO requests should not have been considered by the Civil Court, as plaintiff did not allege that it had responded in any way to the requests” cf. Leica Supply, Inc. v Encompass Indem. Co., 35 Misc 3d 142[A], 2012 NY Slip Op 50890[U] [App Term, 2d, 11th & 13th Jud Dists 2012]; Crescent Radiology, PLLC v American Tr. Ins. Co., 31 Misc 3d 134[A], 2011 NY Slip Op 50622[U] [App Term, 9th & 10th Jud Dists 2011]).”
By seeing a “cf” citation, am I supposed to believe that a response of sorts was generated but it was not responsive, like “verification response” letters that object to my clients’ requesting information? Because if this case says that, then Plaintiff’s really have a problem now.
And this was a converted 3211 to a 3212