Central Park Physical Medicine & Rehab., P.C. v IDS Prop. & Cas. Ins. Co. (2019 NY Slip Op 51148(U))

Bruno, Gerbino & Soriano, LLP (Nathan Shapiro of counsel), for appellant. Sanders Barshay Grossman, LLC (Steven J. Neuwirth of counsel), for respondent.

Appeal from an order of the District Court of Suffolk County, Fourth District (James F. Matthews, J.), dated October 12, 2017. The order denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, without costs, and defendant’s motion for summary judgment dismissing the complaint is granted.

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

Defendant established that it had timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) each of the examination under oath (EUO) scheduling letters by both first-class and certified mail, return receipt requested. While the District Court held that defendant had failed to establish that the follow-up EUO scheduling letter had been mailed by certified mail, that finding, even if correct, would not excuse the failure of plaintiff to appear for the duly scheduled EUOs, since the record does not contain any evidence showing that the mailing of the EUO scheduling letters to plaintiff by first-class mail had been insufficient (see MML Med. Care, P.C. v Praetorian Ins. Co., 46 Misc 3d 127[A], 2014 NY Slip Op 51792[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]). Defendant further demonstrated that plaintiff had failed to appear for the duly scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]), and that defendant had timely mailed (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123) the denial of claim forms, which denied the claims on the ground that plaintiff had failed to appear for the duly scheduled EUOs. Plaintiff failed to raise a triable issue of fact in opposition to defendant’s prima facie showing.

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

ADAMS, P.J., GARGUILO and EMERSON, JJ., concur.