PAVLOVA v. 21ST CENTURY INSURANCE COMPANY (2022)

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, plaintiff appeals from an order of the Civil Court which granted defendant's motion for summary judgment dismissing the complaint on the ground that plaintiff's assignor had failed to appear for duly scheduled examinations under oath (EUOs), and denied plaintiff's cross motion for summary judgment.

Plaintiff correctly argues that defendant's motion failed to establish that defendant had timely denied plaintiff's claim after plaintiff's assignor had allegedly failed to appear at both an initial and a follow-up EUO (see Quality Health Supply Corp. v Nationwide Ins., 69 Misc 3d 133[A], 2020 NY Slip Op 51226[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]). As defendant did not demonstrate that it is not precluded from raising its proffered defense (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2009]), defendant's motion for summary judgment dismissing the complaint should have been denied.

The Civil Court denied plaintiff's cross motion as untimely pursuant to a schedule which the parties had stipulated to more than nine months earlier. Since plaintiff does not argue, much less establish, that its cross motion was timely or set forth a reasonable excuse for plaintiff's failure to cross-move during the more than eight months plaintiff had to do so, there is no basis to disturb the Civil Court's denial of the cross motion as untimely.

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

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