RX FOR YOU v. NATIONWIDE INSURANCE COMPANY OF AMERICA (2021)

ORDERED that the order is modified by providing that defendant's motion for summary judgment dismissing the complaint is denied; 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 on the ground that plaintiff's assignor had failed to appear at duly scheduled examinations under oath (EUOs). Plaintiff cross-moved for summary judgment or, in the alternative, for a “finding that Plaintiff's prima facie case has been established,” and an order sanctioning defendant. Insofar as is relevant to this appeal, by order entered March 18, 2019, the Civil Court granted defendant's motion and denied the branches of plaintiff's cross motion seeking a “finding that Plaintiff's prima facie case had been established” and an order sanctioning defendant.

Upon a review of the record, we find that a triable issue of fact exists as to whether the EUOs were scheduled to be held at a place which was “reasonably convenient” to plaintiff (see 11 NYCRR 65-3.5 [e]; Parisien v Metlife Auto & Home, 68 Misc 3d 126[A], 2020 NY Slip Op 50845[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]). In addition, there is also an issue of fact as to whether, prior to the EUO scheduled for October 14, 2016, the parties mutually agreed to reschedule the EUO (see DVS Chiropractic, P.C. v Interboro Ins. Co., 36 Misc 3d 138[A], 2012 NY Slip Op 51443[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]).

Plaintiff's contention that the Civil Court should have granted the branches of plaintiff's cross motion seeking a “finding that Plaintiff's prima facie case has been established” and an order sanctioning defendant lacks merit.

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

ALIOTTA, P.J., ELLIOT and GOLIA, JJ., concur.