NASSAU CHIROPRACTIC SERVICES v. TRAVELERS INDEMNITY COMPANY (2022)

ORDERED that the order is modified by providing that defendant's initial motion for summary judgment dismissing the complaint is granted; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff had, among other things, failed to appear for duly scheduled examinations under oath (EUOs). Subsequently defendant moved for leave to amend its answer to assert that the limits of the insurance policy had been exhausted and, upon such amendment, to amend its pending summary judgment motion to assert the ground raised in the amended answer. By order dated November 12, 2020, the Civil Court denied both motions.

The affidavits submitted by defendant established that the EUO scheduling letters and the denial of claim form had been timely mailed in accordance with defendant's standard office practices and procedures (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). In addition, the affirmations submitted by defendant's attorneys, who were present in their offices to conduct the EUO of plaintiff on the scheduled dates, were sufficient to establish that plaintiff had failed to appear on those dates (see Hertz Corp. v Active Care Med. Supply Corp., 124 AD3d 411 [2015]; NL Quality Med., P.C. v GEICO Ins. Co., 68 Misc 3d 131[A], 2020 NY Slip Op 50997[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]). As a result, contrary to the Civil Court's determination (see Eagle Surgical Supply, Inc. v Progressive Cas. Ins. Co., 21 Misc 3d 49 [App Term, 2d Dept, 2d & 11th Jud Dists 2008]), defendant demonstrated its prima facie entitlement to summary judgment (see Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2014]). Plaintiff failed to raise a triable issue of fact in opposition to defendant's motion. In light of the foregoing, defendant's initial motion should have been granted and its subsequent motion has been rendered academic.

Accordingly, the order is modified by providing that defendant's initial motion for summary judgment dismissing the complaint is granted.

ALIOTTA, P.J., WESTON and BUGGS, JJ., concur.