BENTO ORTHO INC v. AMERIPRISE AUTO HOME (2019)

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

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).

Plaintiff correctly argues that defendant's motion failed to establish that defendant had timely denied plaintiff's claim after plaintiff's assignor had allegedly failed to appear at both an initial and a follow-up EUO. As defendant did not demonstrate that it is not precluded from raising its proffered defense (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2009]), defendant's motion for summary judgment dismissing the complaint should have been denied.

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

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