In National Liability & Fire Insurance Co. v. Tam Medical Supply Corp., 131 A.D.3d 851, 16 N.Y.S.3d 457 (1st Dept., 2015), plaintiff no-fault insurer moved for summary judgment declaring that its policy does not provide coverage to the individual defendant for the subject accident based on her failure to appear for scheduled EUOs.
The First Department held that plaintiff's motion for summary judgment was properly denied, writing:
Although the failure of a person eligible for no-fault benefits to appear for a properly noticed EUO constitutes a breach of a condition precedent vitiating coverage, here defendants-respondents, assignees of the defaulting individual defendant, opposed plaintiff's summary judgment motion on the ground that plaintiff had not established that it had requested the EUO within the time frame set by the no-fault regulations (see 11 NYCRR section 65-3.5b). In its reply plaintiff failed to supply evidence bearing on whether the EUO had been requested within the appropriate time frame. (Tam, 131 A.D.3d at 851.)