BC CHIROPRACTIC v. FARMERS NEW CENTURY INSURANCE CO (2019)

Appeal from an order of the Civil Court of the City of New York, Kings County (Richard J. Montelione, J.), entered September 12, 2016. The order denied defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, with $ 30 costs, and defendant's motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court which denied defendant's motion, which had sought summary judgment dismissing the complaint on the ground that plaintiff's assignor had failed to appear for duly scheduled examinations under oath (EUOs).

While the Civil Court correctly noted that defendant's January 13, 2012 letter was a delay letter, which did not toll defendant's time to pay or deny the claim, defendant established that initial and follow-up letters scheduling an EUO had been timely mailed (see St. Vincent's Hosp. of Richmond v. Government Empls. Ins. Co., 50 AD3d 1123 [2008]); that plaintiff's assignor had failed to appear on either date (see Stephen Fogel Psychological, P.C. v. Progressive Cas. Ins. Co., 35 AD3d 720 [2006]); and that the claim had been timely denied on that ground (see St. Vincent's Hosp. of Richmond, 50 AD3d 1123). As plaintiff failed to raise a triable issue of fact in opposition to defendant's motion, defendant is entitled to summary judgment dismissing the complaint.

Accordingly, the order is reversed and defendant's motion for summary judgment dismissing the complaint is granted.

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