Compas Med., P.C. v Praetorian Ins. Co. (2015 NY Slip Op 51667(U))

Appeal from an order of the Civil Court of the City of New York, Queens County (Carmen R. Velasquez, J.), entered February 14, 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 the branch of plaintiff’s motion seeking summary judgment upon its third cause of action is granted and the branch of defendant’s cross motion seeking summary judgment dismissing the third cause of action is denied, and the matter is remitted to the Civil Court for the calculation of statutory interest and an assessment of attorney’s fees with respect to this cause of action; as so modified, the order is affirmed, without costs.

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. The Civil Court denied plaintiff’s motion and granted defendant’s cross motion.

Contrary to plaintiff’s contention, defendant established that the independent medical examination (IME) and examination under oath (EUO) scheduling letters had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]), that plaintiff’s assignor had failed to appear for the duly scheduled IMEs and EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]), and that defendant had timely denied (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123) the claims underlying the first, second, and fourth through eighth causes of action on these grounds. 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 plaintiff failed to raise a triable issue of fact in opposition to defendant’s cross motion, defendant was entitled to summary judgment dismissing these causes of action.

However, with respect to the third cause of action, the record establishes that the claim at issue was not denied within 30 days of its receipt (see 11 NYCRR 65-3.8 [a] [1]) and defendant did not demonstrate that the 30-day claim determination period (see 11 NYCRR 65-3.8) had been tolled. As a result, since defendant is precluded from asserting, with respect to this claim, its defense that plaintiff’s assignor had failed to appear for the duly scheduled IMEs and EUOs (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2009]), plaintiff is entitled to summary judgment upon its third cause of action.

Accordingly, the order is modified by providing that the branch of plaintiff’s motion seeking summary judgment upon its third cause of action is granted and the branch of defendant’s cross motion seeking summary judgment dismissing the third cause of action is denied, and the matter is remitted to the Civil Court for the calculation of statutory interest and an assessment of attorney’s fees with respect to this cause of action pursuant to Insurance Law § 5106 (a) and the [*2]regulations promulgated thereunder.

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