PARISIEN v. CITIWIDE AUTO LEASING (2019)

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, the branches of plaintiff's motion seeking summary judgment on the first, second, third, fifth, eighth, ninth, and tenth causes of action are denied and the branches of defendant's cross motion seeking summary judgment dismissing those causes of action are granted.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint on the ground that the bills at issue had been timely denied based upon plaintiff's assignor's failure to appear for examinations under oath (EUOs). Insofar as is relevant to this appeal, the Civil Court granted the branches of plaintiff's motion seeking summary judgment on the first, second, third, fifth, eighth, ninth, and tenth causes of action and denied the branches of defendant's cross motion seeking summary judgment dismissing those causes of action. Although the court implicitly found that defendant demonstrated that it had timely and properly mailed initial and follow-up EUO scheduling letters as to the first, second, third, fifth, eighth, ninth, and tenth causes of action and found that plaintiff's assignor had not appeared for the scheduled EUOs, the court found that defendant's denials were untimely because they had been mailed more than 45 days after plaintiff's assignor had violated a policy condition by failing to appear for the second scheduled EUO. On appeal, defendant argues that the branches of its cross motion seeking summary judgment dismissing the first, second, third, fifth, eighth, ninth, and tenth causes of action should have been granted.

In support of its cross motion, defendant established that it had timely mailed initial and follow-up requests for written verification and letters scheduling an initial and follow-up EUO (see St. Vincent's Hosp. of Richmond v. Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Defendant also demonstrated that the assignor had failed to appear for the scheduled EUOs (see Stephen Fogel Psychological, P.C. v. Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Finally, defendant established that, upon receiving the requested verification, it had timely denied the claims at issue based upon the assignor's failure to appear for EUOs (see St. Vincent's Hosp. of Richmond, 50 AD3d 1123). Although plaintiff's assignor failed to appear for the second scheduled EUO more than 45 days before the subject claims were denied, defendant was not precluded from interposing its defense based upon the assignor's failure to appear for the EUOs, because defendant's time to pay or deny the claims did not begin to run until it received the requested written verification (see Alev Med. Supply, Inc. v. New York Cent. Mut. Fire Ins. Co., 38 Misc 3d 143[A], 2013 NY Slip Op 50258[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013] ). Thus, defendant established its prima facie entitlement to summary judgment, and plaintiff failed to raise a triable issue of fact in opposition.

Accordingly, the order, insofar as appealed from, is reversed, the branches of plaintiff's motion seeking summary judgment on the first, second, third, fifth, eighth, ninth, and tenth causes of action are denied and the branches of defendant's cross motion seeking summary judgment dismissing those causes of action are granted.

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