Country-Wide Ins. Co. v Gotham Med., P.C., 2015 NY Slip Op 25387 (Sup. Ct. NY CO. 2015)
“Dr. Scheer’s failure to answer all relevant questions at the EUO, as required by the provisions of the applicable insurance policies, constitutes a material breach of contract, and precludes recovery by defendant. A condition precedent to coverage is cooperation in submitting to an EUO (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, 82 AD3d 559, 560 [1st Dept 2011]; Levy v Chubb Ins., 240 AD2d 336, 337 [1st Dept 1997]). The insurance policies and 11 NYCRR 65-3.5 (c) provide that plaintiffs, as insurers, may request that defendant, as a claimant, submit to an EUO, as a condition precedent to disbursement of benefits. Dr. Scheer stepped into the shoes of the insureds (cf. New York & Presbyt. Hosp. v Country-Wide Ins. Co., 17 NY3d 586, 592 [2011] [“as an assignee of all the rights, privileges and remedies to which (the patient) was entitled under the No-Fault Law, (the plaintiff) stood in the shoes of (the patient) and acquired no greater rights than he had.”]). Dr. Scheer’s refusal to answer relevant questions in relation to the claims was not proper and led to an appropriate disclaimer of coverage by plaintiffs (see Latha Rest. Corp. v Tower Ins. Co., 38 AD3d 321, 322 [1st Dept 2007]).
Plaintiffs’ inquiry at the EUO regarding Dr. Scheer’s medical license was permissible. As a professional service corporation, defendant was required to be owned and controlled by a licensed professional, who rendered the services provided by defendant (see One Beacon Ins. Group, LLC v Midland Med. Care, P.C., 54 AD3d 738, 740 [2nd Dept 2008]). Although Dr. Scheer was entitled to confidentiality regarding the OPMC administrative proceeding itself (Public Health Law § 230; Anonymous v Bureau of Professional Med. Conduct/State Bd. for Professional Med. Conduct, 2 NY3d 663, 669-670 [2004]; Doe v Office of Professional Med. Conduct of NY State Dept. of Health, 81 NY2d 1050, 1052 [1993]), the effect of the consent order on the manner in which Dr. Scheer was entitled to practice medicine was not confidential. With respect to questions about treatment, Dr. Scheer’s refusal to answer them resulted in obstructing plaintiffs from obtaining relevant information to evaluate the treatments rendered and the sums claimed.
Answer questions posed at the EUO. It is really simple.
