WES PSYCHOLOGICAL SERVICES v. TRAVELERS INSURANCE COMPANY (2019)

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 on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs), and plaintiff cross-moved for summary judgment. By order entered November 18, 2016, the Civil Court denied defendant's motion and granted plaintiff's cross motion. A judgment was subsequently entered on December 22, 2016, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

Contrary to defendant's sole contention, defendant failed to demonstrate that it was entitled to summary judgment dismissing the complaint based on plaintiff's failure to appear for EUOs, since the initial EUO request to plaintiff had been sent more than 30 days after defendant had received the claims at issue and, therefore, the requests were nullities as to those claims (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 judgment is affirmed.

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