EA CHIROPRACTIC DIAGNOSTICS v. GEICO INSURANCE (2020)

ORDERED that the order, insofar as appealed from, is modified by providing that the branch of defendant's cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon a claim for services rendered from May 19, 2016 through May 25, 2016 is granted; as so modified, the order, insofar as appealed from, is affirmed, without costs.

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

In support of the branch of its cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon a claim for services rendered from May 19, 2016 through May 25, 2016, defendant submitted an affidavit by the general manager of Empire Stat Med Review, P.C., which had been retained by defendant to schedule IMEs, which affidavit sufficiently established that the IME scheduling letters had been timely mailed (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Defendant also established that the assignor failed to appear for the duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Thus, defendant demonstrated that plaintiff failed to comply with a condition precedent to coverage (id. at 722). As defendant's cross motion further established that defendant timely denied (see St. Vincent's Hosp. of Richmond, 50 AD3d 1123) the claim on that ground, and plaintiff failed to raise a triable issue of fact in opposition to this branch of defendant's cross motion, the branch of defendant's cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon a claim for services rendered from May 19, 2016 through May 25, 2016 should have been granted.

Contrary to defendant's contention, defendant's cross motion failed to establish that defendant had timely denied the remaining claims at issue after plaintiff 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 this proffered defense (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2009]), defendant is not entitled to summary judgment upon the branch of its cross motion seeking summary judgment dismissing the remaining portion of the complaint.

Accordingly, the order, insofar as appealed from, is modified by providing that the branch of defendant's cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon a claim for services rendered from May 19, 2016 through May 25, 2016 is granted.

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