The opinion
Liberty Mut. Ins. Co. v Barrett-Lord
2025 NY Slip Op 31790(U)
May 15, 2025
Supreme Court, New York County
Docket Number: Index No. 650001/2023
Judge: Lori S. Sattler
Cases posted with a "30000" identifier, i.e., 2013 NY Slip
Op 30001(U), are republished from various New York
State and local government sources, including the New
York State Unified Court System's eCourts Service.
This opinion is uncorrected and not selected for official
publication.
FILED: NEW YORK COUNTY CLERK 05/15/2025 04:38 PM INDEX NO. 650001/2023
NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 05/15/2025
SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
PRESENT: HON. LORI S. SATTLER PART 02M
Justice
---------------------------------------------------------------------------------X INDEX NO. 650001/2023
LIBERTY MUTUAL INSURANCE COMPANY, LM
GENERAL INSURANCE COMPANY, MOTION DATE 11/25/2024
Plaintiff, MOTION SEQ. NO. 002
-v-
JERRY BARRETT-LORD, 167 RX INC, ANDREW
GEWIRTZ MD, BRONX DIAGNOSTIC RADIOLOGY
PC,CARE TOUCH PT PC,EMPIRE MEDICAL &
REHABILITATION PC,FLOW RX, INC, GRACE MEDICAL
HEALTH PROVIDER PC,KNAPP ORTHO SERVICES INC,
DECISION + ORDER ON
KONATA SOLOMON STALLINGS PSYD, MACINTOSH
MEDICAL PC,MAZAL PHARMACY INC DBA MIRAGE, MOTION
NEW GENERATION ACUPUNCTURE PC,PAL MEDICAL
SUPPLIES INC, PHELAN CLANCY NP IN ADULT HEALTH
PLLC,QUAZI R MEDICAL SERVICES PC,TOTAL
ANESTHESIA PROVIDER PC,VBW SERVICES, INC
Defendant.
---------------------------------------------------------------------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 002) 40, 41, 42, 43, 44,
45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58
were read on this motion to/for JUDGMENT - SUMMARY .
This declaratory judgment action arises out of a motor vehicle accident that purportedly
occurred on December 30, 2021 involving individual defendant Jerry Barrett-Lord, Jr.
(“Claimant”) in which he states that his vehicle was struck by a vehicle operated by nonparty
Mars Express Corp., which was insured by plaintiffs Liberty Mutual Insurance Company and
LM General Insurance Company (“Plaintiffs”). Claimant purportedly sought treatment from the
other defendants (collectively the “Medical Provider Defendants”), which then submitted bills to
Plaintiffs seeking reimbursement under the vehicle’s No-Fault policy. As part of the claims
investigation process, Plaintiffs timely requested that Claimant appear for Examinations Under
650001/2023 LIBERTY MUTUAL INSURANCE COMPANY ET AL vs. BARRETT-LORD JR., Page 1 of 4
JERRY ET AL
Motion No. 002
1 of 4
[* 1]
FILED: NEW YORK COUNTY CLERK 05/15/2025 04:38 PM INDEX NO. 650001/2023
NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 05/15/2025
Oath (“EUOs”). The Claimant subsequently failed to appear at his EUO (NYSCEF Doc. Nos.
50-53). Plaintiffs denied the bills submitted by the Medical Provider Defendants.
Plaintiffs thereafter commenced this action seeking a declaratory judgment that it has no
obligation to reimburse the Medical Provider Defendants under the applicable No-Fault policy.
Default judgment was entered against Claimant and certain Medical Provider Defendants on
February 16, 2024 (NYSCEF Doc. No. 31). Plaintiffs now move for summary judgment against
the remaining Medical Provider Defendant, PAL Medical Supplies Inc., which does not oppose
the motion.
On a motion for summary judgment, a movant must make a prima facie showing that
they are entitled to judgment as a matter of law by tendering sufficient evidence to demonstrate
the absence of any issue of material fact (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).
After the movant makes this showing, “the burden shifts to the party opposing the motion . . . to
produce evidentiary proof in admissible form sufficient to establish the existence of material
issues of fact such that trial of the action is required” (id.).
11 NYCRR § 65-1.1 requires that full compliance by an eligible injured person with the
terms of coverage in a No-Fault policy is a condition precedent to all claims against an insurance
company under the relevant policy. A claimant-defendant’s failure to submit to an EUO
constitutes a breach of a condition precedent to coverage under a No-Fault policy and vitiates the
policy (Hertz Corp. v Active Care Med. Supply Corp., 124 AD3d 411 [1st Dept 2015]). An
insurer must establish that it requested EUOs in accordance with the procedures and time frames
in the No-Fault regulations (11 NYCRR § 65-3.5) in order to deny a claim where a claimant-
defendant fails to appear for an EUO (Unitrin, 82 AD3d at 560; American Tr. Ins. Co. v
Longevity Med. Supply, Inc., 131 AD3d 841, 841-42 [1st Dept 2019]). Here, Plaintiff presents
650001/2023 LIBERTY MUTUAL INSURANCE COMPANY ET AL vs. BARRETT-LORD JR., Page 2 of 4
JERRY ET AL
Motion No. 002
2 of 4
[* 2]
FILED: NEW YORK COUNTY CLERK 05/15/2025 04:38 PM INDEX NO. 650001/2023
NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 05/15/2025
sufficient evidence to meet its prima facie burden of demonstrating that the EUOs were properly
and timely noticed by submitting copies of the EUO requests and proof of Claimant’s
nonappearance (NYSCEF Doc. Nos. 50-53). Plaintiff is therefore entitled to summary judgment
against PAL Medical Supplies Inc.
Accordingly, it is hereby:
ORDERED that Plaintiffs’ motion for summary judgment is granted; and it is further
ORDERED, ADJUDGED, and DECLARED that Claimant breached a condition
precedent to coverage as established by the No-Fault Regulations and the subject policy of
insurance and accompanying No-Fault endorsement by failing to appear at his EUO; and it is
further
ORDERED, ADJUDGED and DECREED that Plaintiffs’ denial of all claims for No-
Fault benefits by defendant PAL Medical Supplies Inc. stemming from the alleged occurrence of
December 30, 2021 involving individual defendant Jerry Barrett-Lord. Jr. is valid; and it is
further
ORDERED, ADJUDGED, and DECLARED that Plaintiffs owe no duty to provide any
No-Fault reimbursements to defendant PAL Medical Supplies Inc. for any claim or bill
submitted by or on behalf of Jerry Barrett-Lord, Jr., as he breached a condition precedent to
coverage by failing to appear at his EUO; and it is further
ORDERED, ADJUDGED and DECREED that each and every part of any arbitration or
court hearing brought by defendant PAL Medical Supplies Inc. stemming from the alleged
occurrence of December 30, 2021 involving individual defendant Jerry Barrett-Lord, Jr. is
hereby permanently stayed; and it is further
650001/2023 LIBERTY MUTUAL INSURANCE COMPANY ET AL vs. BARRETT-LORD JR., Page 3 of 4
JERRY ET AL
Motion No. 002
3 of 4
[* 3]
FILED: NEW YORK COUNTY CLERK 05/15/2025 04:38 PM INDEX NO. 650001/2023
NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 05/15/2025
ORDERED that the Clerk is directed to enter judgment against defendant PAL Medical
Supplies Inc.
This constitutes the Decision and Order of the Court.
5/15/2025 $SIG$
DATE LORI S. SATTLER, J.S.C.
CHECK ONE: X CASE DISPOSED NON-FINAL DISPOSITION
□
X GRANTED DENIED GRANTED IN PART OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
□
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE
650001/2023 LIBERTY MUTUAL INSURANCE COMPANY ET AL vs. BARRETT-LORD JR., Page 4 of 4
JERRY ET AL
Motion No. 002
4 of 4
[* 4]