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Civil Court of the City of New York, Queens County, January 22, 2004
APPEARANCES OF COUNSEL
Baker & Barshay, LLP, Hauppauge (Richard A. D'Arrigo and Gary R. Defilippo of counsel), for plaintiff. Lawrence N. Rogak, LLC, Oceanside (Kyun Yi of counsel), for defendant.
{**3 Misc 3d at 323} OPINION OF THE COURT
Bernice D. Siegal, J.
Plaintiff's cross motion for summary judgment to recover unpaid no-fault benefits[FN*] is disposed of as follows:
The relevant facts, as set forth in the court's prior order and reiterated here, are as follows: Plaintiff rendered medical services to plaintiff's assignor on October 29, 2001 for injuries allegedly sustained in an automobile accident occurring on October 6, 2001. Plaintiff's bill dated January 3, 2002 was received by defendant on January 9, 2002. By letter dated December 20, 2001 and mailed to the assignor Bienvenida, defendant required her to appear for an examination under oath (EUO) on January 15, 2002. When the assignor failed to appear on said date, defendant, by letter dated January 16, 2002 and mailed to Bienvenida and her attorney, rescheduled the EUO for January 23, 2002. Again, the assignor failed to appear for the rescheduled EUO. Subsequently, by an NF-10 issued on January 20, 2002, defendant denied the [*2]claim effective October 6, 2001, the date of the accident, "for failure to show for scheduled" EUO.
Defendant, in its opposition to the within cross motion, contends that the failure of plaintiff's assignor to appear for an EUO constitutes a material breach of the subject no-fault insurance policy precluding any recovery of benefits thereunder. Plaintiff, in its cross-moving papers, argues that the no-fault regulations controlling at the time of the instant claim did not provide for an EUO, that the assignor did not have a statutory duty to appear for the EUO and that, therefore, defendant cannot assert such failure to appear for the EUO as a defense to plaintiff's claim.
The court hereby grants plaintiff's cross motion for summary judgment on the following grounds: (1) the assignor under the applicable {**3 Misc 3d at 324}regulations was under no duty to appear for an EUO; (2) an EUO is not the equivalent of a written proof of claim; (3) failure to appear twice for an EUO does not reach the level of "a pattern of noncooperation"; and (4) a breach of the liability endorsement of the insurance policy may not be construed as a breach of the no-fault endorsement.
Construction of Regulations
The proof of claim provisions under the regulations in existence at the time of the accident in question are devoid of any mention of an EUO. Rather, as both plaintiff and defendant make clear, the injured person or someone on their behalf shall "execute written proof of claim under oath." Notably, the omission of an EUO as a requirement for a proof of claim if requested by the insurer is made even more striking by the inclusion of a requirement for an independent medical examination. The relevant regulations in effect at the time of the purported accident are as follows:
"mandatory personal injury protection endorsement (New York) . . .
"Proof of Claim; Medical, Work Loss, and Other Necessary Expenses . . . Upon request by the Company the eligible injured person or that person's representative shall:
"(a) execute a written proof of claim under oath;{**3 Misc 3d at 325}
"(b) provide authorization that will enable the Company to obtain medical records; and
"(c) provide any other pertinent information that may assist the Company in determining the amount due and payable.
"The eligible injured person shall submit to medical examination by physicians selected by, or acceptable to, the Company, when, and as often as, the Company may reasonably require." (11 NYCRR 65.12 [e] [eff Aug. 15, 1995].)
Amendments to these regulations were promulgated which substantially changed an injured party's obligations, to wit, a new subpart 65-1 was added to make clear the requirements for endorsements. The prescribed policy endorsement, section I, Conditions, provides:
"Proof of Claim. Medical, Work Loss, and Other Necessary expenses . . . Upon request by the Company, the eligible injured person or that person's assignee or representative shall:
"(a) execute a written proof of claim under oath;
[*3]
"(b) as may reasonably be required submit to examination under oath by any person
named by the Company and subscribe same;

"(c) provide authorization that will enable the Company to obtain medical records; and
"(d) provide any other pertinent information that may assist the Company in determining the amount due and payable.
"The eligible injured person shall submit to medical examination by physicians selected by, or acceptable to, the Company when, and as often as, the Company may reasonably require." (11 NYCRR 65.1-1 [d] [the underscoring added above denotes new material "filed Aug. 2, 2001, eff Sept. 1, 2001. Effectiveness stayed Aug. 29, 2001; stay overruled Apr. 4, 2002. Part effective Apr. 5, 2002" (regulations implementing the Comprehensive Motor Vehicle Insurance Reparations Act subparts 65-1

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