NEW YORK WELLNESS PT v. STATE FARM MUTUAL AUTOMOBILE INS CO (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.

Although defendant established that the EUO scheduling letters had been timely mailed (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]), defendant failed to submit proof by someone with personal knowledge of the nonappearance of plaintiff's assignor for the EUOs. In addition, defendant's motion failed to establish, as a matter of law, that defendant had timely denied plaintiff's claim after plaintiff's assignor had allegedly failed to appear at two duly scheduled EUOs. Therefore, defendant failed to establish its entitlement to summary judgment dismissing the complaint on the ground that plaintiff's assignor had failed to appear for EUOs (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2009]; Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).

Finally, plaintiff failed to demonstrate its prima facie entitlement to judgment as a matter of law, as the proof submitted in support of its cross motion failed to establish that defendant failed to deny the claim within the 30-day period (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]) or that defendant had issued denials that were conclusory, vague or without merit as a matter of law (see Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).

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

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