ACUPUNCTURE NOW v. AMERICAN COMMERCE INSURANCE COMPANY (2018)

ORDERED that the order is modified by providing that the branch of defendant's motion seeking summary judgment dismissing the first cause of action 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 had failed to appear for duly scheduled examinations under oath (EUOs).

Contrary to plaintiff's argument, defendant's proof was sufficient to establish plaintiff's nonappearance at an initial and follow-up EUO (see Stephen Fogel Psychological, P.C. v. Progressive Cas. Ins. Co., 35 AD3d 720 [2006] ).

However, plaintiff correctly argues that defendant failed to demonstrate that it was entitled to summary judgment dismissing the first cause of action based on plaintiff's failure to appear for EUOs, as the initial EUO request had been sent more than 30 days after defendant had received the claim underlying that cause of action, and, therefore, the request was a nullity as to that claim (see Neptune Med. Care, P.C. v. Ameriprise Auto & Home Ins., 48 Misc 3d 139[A], 2015 NY Slip Op 51220[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; O & M Med., P.C. v. Travelers Indem. Co., 47 Misc 3d 134[A], 2015 NY Slip Op 50476[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015] ).

Accordingly, the order is modified by providing that the branch of defendant's motion seeking summary judgment dismissing the first cause of action is denied.

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