

Hertz Vehicles, LLC v Alluri (2019 NY Slip Op 02480)





Hertz Vehicles, LLC v Alluri


2019 NY Slip Op 02480


Decided on April 2, 2019


Appellate Division, First Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on April 2, 2019

Gische, J., Tom, Gesmer, Moulton, JJ.


8877 154077/15

[*1]Hertz Vehicles, LLC, Plaintiff-Respondent,
vJagga Alluri, M.D., et al., Defendants, Advanced Orthopedics, P.C., Defendant-Appellant.


Jonathan B. Seplowe, P.C., Malverne (Damin J. Toell of counsel), for appellant.
Rubin, Fiorella & Friedman, LLP, New York (David F. Boucher, Jr., of counsel), for respondent.

Order, Supreme Court, New York County (Kathryn Freed, J.), entered on or about December 11, 2017, which, to the extent appealed from, granted plaintiff's motion for summary judgment declaring that plaintiff does not owe coverage for the no-fault claims allegedly assigned to defendant Advanced Orthopedics, P.C. (Advanced), unanimously affirmed, without costs.
The failure of a party eligible for no-fault benefits to appear for a properly-noticed Examination under Oath (EUO) constitutes a breach of a condition precedent, vitiating coverage (Hertz Corp. v Active Care Med. Supply Corp., 124 AD3d 411, 411 [1st Dept 2015]). As it is undisputed that Hertz Vehicles, LLC (Hertz) received a claim from Advanced on April 10, 2015, and that Advanced failed to appear at its scheduled EUOs in January and February of 2015, Hertz is under no obligation to honor any claims submitted by Advance retroactive to the date of loss (Mapfre Ins. Co. of N.Y. v Manoo, 140 AD3d 468 [1st Dept 2016]; Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [1st Dept 2011]).
We have considered this defendant's remaining contentions and find them to be unavailing.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: APRIL 2, 2019
CLERK


