MEDICAL v. GLOBAL LIBERTY INS CO OF NY (2018)

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered January 16, 2015, deemed from a judgment of that court entered March 9, 2015 (see CPLR 5501 [c] ). The judgment, entered pursuant to the January 16, 2015 order denying defendant's motion for summary judgment dismissing the complaint and granting plaintiff's cross motion for summary judgment, awarded plaintiff the principal sum of $1,916.46.

ORDERED that the judgment is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint and plaintiff cross-moved for summary judgment. By order entered January 16, 2015, the Civil Court denied defendant's motion and granted plaintiff's cross motion. This appeal by defendant ensued. A judgment was subsequently entered on March 9, 2015, from which the appeal is deemed to have been taken (see CPLR 5501 [c] ).

Pursuant to 11 NYCRR 65—3.6 (b), upon sending a second examination under oath (EUO) scheduling letter to plaintiff's assignor, defendant was required to send plaintiff a delay letter (see Doshi Diagnostic Imaging Servs. v. State Farm Ins. Co., 16 Misc 3d 42 [App Term, 2d Dept, 9th & 10th Jud Dist 2007]; see also Advantage Radiology, P.C. v. Nationwide Mut. Ins. Co., 55 Misc 3d 91 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017] ). However, it failed to do so. Consequently, defendant failed to demonstrate that it had properly tolled the time to pay or deny plaintiff's claims and, as a result, it is precluded from raising its proferred defense that plaintiff's assignor had failed to appear for duly scheduled EUOs (see Westchester Med. Ctr. v. Lincoln Gen. Ins. Co., 60 AD3d 1045 [2009] ).

Accordingly, the judgment is affirmed.

WESTON, J.P., PESCE and SIEGAL, JJ., concur.