NORTHERN MEDICAL CARE v. NATIONWIDE AFFINITY INS CO OF AMERICA (2024)

ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals, as limited by its brief, from so much of an order of the Civil Court (Keisha M. Alleyne, J.) dated October 11, 2022 as granted defendant's motion for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs).

As the Civil Court observed, although plaintiff's owner appeared at an EUO scheduled to be held on April 10, 2018, plaintiff's counsel refused to permit plaintiff's owner to answer any questions regarding the claim at issue and plaintiff's counsel stated that defendant should “consider it a no show” (see Country-Wide Ins. Co. v Gotham Med., P.C., 154 AD3d 608 [2017] [appearing at an EUO and refusing to answer questions is a failure to comply with the request for an EUO]). Defendant subsequently timely scheduled four additional EUOs, the last of which was scheduled for September 6, 2018. Although plaintiff's owner appeared on that date, he left before the EUO could begin. As a result, the Civil Court correctly held that defendant's denial of claim on September 12, 2018, on the ground that plaintiff had failed to appear for duly scheduled EUOs, had been timely (see Quality Health Supply Corp. v Nationwide Ins., 216 AD3d 1013 [2023]). Contrary to plaintiff's contention, Quality Health Supply Corp. stands for the proposition that an insurer may choose to timely schedule more than two EUOs and a denial of the claim will be timely as long as it was issued in a timely manner after the last scheduled EUO.

Furthermore, defendant was not required to set forth objective reasons for requesting EUOs as, to make a prima facie showing of entitlement to summary judgment based on a failure to appear for an EUO, an insurer need only demonstrate as a matter of law that it duly scheduled at least two EUOs; that the party failed to appear as requested; and that the insurer timely issued a denial of the claim or claims on that ground “following the [ ] failure to appear at the last scheduled EUO” (Quality Health Supply Corp., 216 AD3d at 1014; see Interboro Ins. Co. v Clennon, 113 AD3d 596 [2014]; 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]).

Plaintiff's remaining contentions lack merit.

Accordingly, the order, insofar as appealed from, is affirmed.

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