Active Chiropractic, P.C. v Praetorian Ins. Co. (2015 NY Slip Op 51668(U))

Appeal from an order of the Civil Court of the City of New York, Queens County (Ulysses Bernard Leverett, J.), entered February 19, 2013. The order, insofar as appealed from, denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant’s cross motion for summary judgment dismissing the complaint is 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, alleging that the claim at issue had been timely and properly denied based upon plaintiff’s assignor’s failure to appear at duly scheduled examinations under oath (EUOs). Insofar as is relevant to this appeal, the Civil Court denied defendant’s cross motion, finding that there was an issue of fact as to whether plaintiff’s assignor had failed to appear for the duly scheduled EUOs.

The affirmation submitted by defendant’s attorney in support of defendant’s cross motion sufficiently described the standard practices and procedures of his office for mailing EUO scheduling letters (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Furthermore, defendant established, based upon the personal knowledge of the attorney who was responsible for conducting the EUOs at issue, that plaintiff’s assignor had failed to appear for either of the duly scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; Olmeur Med., P.C. v Nationwide Gen. Ins. Co., 41 Misc 3d 143[A], 2013 NY Slip Op 52031[U] [App Term, 2d, 11th & 13th Jud Dists 2013]). Contrary to the determination of the Civil Court, defendant’s annexation of EUO transcripts demonstrating that a different assignor had also failed to appear for that assignor’s EUOs did not demonstrate the existence of a triable issue of fact in the instant action. Since defendant demonstrated that plaintiff’s assignor had failed to comply with a condition precedent to coverage (see Stephen Fogel Psychological, P.C., 35 AD3d at 722) and that defendant had timely denied (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123) the claim on that ground, defendant was entitled to summary judgment dismissing the complaint.

Accordingly, the order, insofar as appealed from, is reversed and defendant’s cross motion for summary judgment dismissing the complaint is granted.

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