CENTRAL PHARMACY INC v. NATIONWIDE MUTUAL INSURANCE COMPANY (2024)

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant's motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order of the Civil Court as denied defendant's motion which had sought summary judgment dismissing the complaint on the ground that plaintiff failed to appear for duly scheduled examinations under oath (EUOs). The Civil Court found, in effect, pursuant to CPLR 3212 (g), that the only issue for trial was “the scheduling of EUO[s] based upon the objection letters of the [p]laintiff and the [d]efendant's responses.”

To the extent that the Civil Court found an issue of fact as to the reasonableness of the location of the EUO, each of the EUO scheduling letters offered plaintiff the option to appear virtually. As plaintiff does not challenge the Civil Court's finding, in effect, that defendant is otherwise entitled to judgment, defendant's motion for summary judgment dismissing the complaint is granted (see GPLW Acupuncture, P.C. v Nationwide Mut. Ins. Co., 82 Misc 3d 128[A], 2024 NY Slip Op 50395[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2024]).

Accordingly, the order, insofar as appealed from, is reversed and defendant's motion for summary judgment dismissing the complaint is granted.

TOUSSAINT, P.J., BUGGS and OTTLEY, JJ., concur.