Compas Med., P.C. v American Tr. Ins. Co. (2016 NY Slip Op 51360(U))

Appeal from an order of the Civil Court of the City of New York, Queens County (Jodi Orlow, J.), entered June 18, 2013. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

Defendant’s cross motion for summary judgment was predicated upon the defense that defendant had timely denied the claims at issue based upon plaintiff’s assignor’s failure to appear for duly scheduled examinations under oath (EUOs). In order to prove that the EUO letters had been timely mailed, defendant submitted two affidavits, each describing a portion of defendant’s practices and procedures. While the affidavit that describes defendant’s mail room practices and procedures alleges that defendant mailed EUO scheduling letters on October 1, 2010 and October 29, 2010, the other affidavit, which alleges, based upon a combination of personal knowledge and practices and procedures, that a scheduling letter was prepared for mailing on October 29, 2010, does not even mention the October 1, 2010 letter. Thus, defendant did not demonstrate its entitlement to summary judgment dismissing the complaint.

Plaintiff’s contention that its motion for summary judgment should have been granted lacks merit. Plaintiff’s moving papers failed to establish that the claims at issue had not been timely denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant had issued timely denials of claim that were conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).

Accordingly, the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied.

Pesce, P.J., Aliotta and Solomon, JJ., concur.