The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for appellant.

Rivkin Radler, LLP (Stuart M. Bodoff of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Jill R. Epstein, J.), dated September 2, 2020. The order, insofar as appealed from, granted defendant’s motion for summary judgment dismissing causes of action (1), (2), (4) and (6), and denied the branches of plaintiff’s cross motion seeking summary judgment on those four causes of action.

ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.

In October of 2017, plaintiff Ahmed Medical Care, P.C. (Ahmed) commenced this action against defendant State Farm Mutual Automobile Ins. Co. (State Farm) to recover $892.14 in assigned first-party no-fault benefits for services Ahmed rendered to its assignor, Celeste October, for injuries the assignor allegedly sustained in a motor vehicle accident on March 9, 2015. The services were rendered on six dates between June 23, 2015 and November 18, 2015.

State Farm moved for summary judgment dismissing causes of action (1), (2), (4) and (6) on the ground that they were barred by the doctrine of res judicata and/or collateral estoppel by virtue of the declaratory judgment issued by the Supreme Court, Nassau County, in a declaratory judgment action commenced by State Farm against Ahmed. In support of the motion, State [*2]Farm’s counsel stated that, following Ahmed’s default in appearing in the Supreme Court action, a judgment was entered on April 1, 2016 (Antonio I. Brandveen, J.) which declared that Ahmed had no right to receive payment from State Farm for any claims set forth in the chart attached to the Supreme Court complaint because the assignor had failed to appear for examinations under oath. State Farm attached to its Civil Court motion a copy of the chart containing the precluded claims. State Farm’s counsel further stated that Ahmed’s motion to vacate its default in appearing in the Supreme Court action was denied in an order entered September 2, 2016. Ahmed cross-moved in the Civil Court for summary judgment on all six causes of action. Ahmed’s counsel argued, as is relevant here, that the declaratory judgment action has no preclusive effect on this action since it was granted on default.

In an order dated September 2, 2020, the Civil Court granted State Farm’s motion for summary judgment dismissing causes of action (1), (2), (4) and (6), and granted Ahmed’s cross motion for summary judgment only with respect to causes of action (3) and (5). Ahmed appeals.

For the reasons stated in Ahmed Med. Care, P.C., as assignee of October, Sigmund v State Farm Mut. Auto. Ins. Co. (— Misc 3d —, 2023 NY Slip Op — [appeal No. 2021-659 K C], decided herewith), the order, insofar as appealed from, is affirmed.

TOUSSAINT, P.J., BUGGS and MUNDY, JJ., concur.

Decided on January 6, 2023

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Hollander Legal Group, P.C. (Allan S. Hollander of counsel), for appellant. Law Office of Gabriel & Moroff, LLC (Matthew Sledzinski and Koenig Pierre of counsel), for respondent.

Appeal from an order of the District Court of Suffolk County, Third District (C. Stephen Hackeling, J.), dated July 12, 2021. The order, insofar as appealed from and as limited by the brief, denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, 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 moved for summary judgment dismissing the complaint on the ground that plaintiff failed to appear for duly scheduled examinations under oath (EUOs). In an order dated July 12, 2021, the District Court denied the motion, but implicitly found, in effect pursuant to CPLR 3212 (g), that defendant had established the timely and proper mailing of the EUO scheduling letters and the denial of claim forms, as well as plaintiff’s failure to appear for the EUOs. The District Court further found that the only remaining issue for trial was the reasonableness of defendant’s EUO requests.

To establish its prima facie entitlement to summary judgment dismissing a complaint on the ground that a provider failed to appear for an EUO, an insurer must demonstrate, as a matter of law, that it twice duly demanded an EUO from the provider, that the provider twice failed to [*2]appear, and that the insurer issued timely denials of the claims (see Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2014])—all elements that the District Court found to have been established (see CPLR 3212 [g]).

Plaintiff does not argue that defendant did not demonstrate its prima facie entitlement to summary judgment. Rather, plaintiff argues that defendant did not have an objective basis for requesting the EUOs. However, contrary to plaintiff’s contention, defendant was not required to set forth objective reasons for requesting EUOs in order to establish its prima facie entitlement to summary judgment (see Interboro Ins. Co. v Clennon, 113 AD3d 596 [2d Dept 2014]; NY Wellness Med., P.C. v Nationwide Mut. Ins. Co., 75 Misc 3d 126[A], 2022 NY Slip Op 50359[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2022]; cf. Kemper Independence Ins. Co. v AB Med. Supply, Inc., 187 AD3d 671 [1st Dept 2020]; American Tr. Ins. Co. v Jaga Med. Servs., P.C., 128 AD3d 441 [1st Dept 2015]). As plaintiff failed to raise a triable issue of fact, defendant’s motion should have been granted.

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

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

The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for appellant. Hollander Legal Group, P.C. (Allan S. Hollander of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Odessa Kennedy, J.), entered July 29, 2021. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

ORDERED that the order is modified by providing that defendant’s 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 granting defendant’s motion for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs), and denying plaintiff’s cross motion for summary judgment.

Plaintiff correctly argues that defendant’s motion failed to establish that defendant had timely denied plaintiff’s claims after plaintiff’s assignor had allegedly failed to appear at both an initial and a follow-up EUO (see Ezra Supply, Inc. v Nationwide Affinity Ins. Co. of Am., — Misc 3d —, 2022 NY Slip Op 22383 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]; FJL Med. Servs., P.C. v Nationwide Ins., — Misc 3d —, 2022 NY Slip Op 51213[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]; Island Life Chiropractic Pain Care, PLLC v 21st Century Ins. Co., 74 Misc 3d 17 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]; Quality Health Supply Corp. v Nationwide Ins., 69 Misc 3d 133[A], 2020 NY Slip Op 51226[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]). As defendant did not demonstrate that it is [*2]not precluded from raising its proffered defense (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2009]), defendant’s motion for summary judgment dismissing the complaint should have been denied.

However, plaintiff failed to demonstrate its prima facie entitlement to summary judgment, as the proof submitted in support of its cross motion failed to establish that the claims 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 denial of claim forms 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 motion for summary judgment dismissing the complaint is denied.

ALIOTTA, P.J., WESTON and TOUSSAINT, JJ., concur.

Hollander Legal Group, P.C. (Allan S. Hollander of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Richard Tsai, J.), dated July 12, 2021. The order denied defendant’s motion for summary judgment dismissing the complaint and granted plaintiff’s cross motion for summary judgment.

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court denying defendant’s motion which had sought summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs), and granting plaintiff’s cross motion for summary judgment.

Defendant’s motion failed to establish that it had timely denied plaintiff’s claims after plaintiff’s second failure to appear for an EUO (see Ezra Supply, Inc. v Nationwide Affinity Ins. Co. of Am., — Misc 3d —, 2022 NY Slip Op 22383 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]; FJL Med. Servs., P.C. v Nationwide Ins., — Misc 3d —, 2022 NY Slip Op 51213[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]; Island Life Chiropractic Pain Care, PLLC v 21st Century Ins. Co., 74 Misc 3d 17 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]; Quality Health Supply Corp. v Nationwide Ins., 69 Misc 3d 133[A], 2020 NY Slip Op 51226[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]). As defendant did not demonstrate that it is not precluded from raising its proffered defense (see Westchester Med. Ctr. [*2]v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2009]), defendant’s motion for summary judgment dismissing the complaint was properly denied.

As to plaintiff’s cross motion, defendant does not challenge plaintiff’s prima facie case and so we do not pass upon the propriety of the Civil Court’s determination with respect thereto. Moreover, defendant’s papers were insufficient to demonstrate that there is a triable issue of fact as to its EUO no-show defense so as to warrant denial of plaintiff’s cross motion.

Accordingly, the order is affirmed.

ALIOTTA, P.J., WESTON and TOUSSAINT, JJ., concur.

The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for appellant. McDonnell, Adels & Klestzick, PLLC (Jannine A. Gordineer of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Consuelo Mallafre Melendez, J.), dated October 15, 2020. The order granted the branch of defendant’s motion seeking summary judgment dismissing the complaint on the ground of fraudulent procurement of the insurance policy and denied plaintiff’s cross motion for summary judgment.

ORDERED that the order is modified by providing that the branch of defendant’s motion seeking summary judgment dismissing the complaint on the ground of fraudulent procurement of the insurance policy is denied; as so modified, the order is affirmed, without costs, and the matter is remitted to the Civil Court for a determination of the branch of defendant’s motion seeking summary judgment dismissing the complaint on the alternate ground that the amounts sought to be recovered exceeded the amounts permitted by the workers’ compensation fee schedule.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff’s assignor had fraudulently procured the insurance policy in question by making material misrepresentations as to the vehicle in question and on the alternate ground that the amounts sought to be recovered exceeded the amounts permitted by the workers’ compensation fee schedule, a defense that is not subject to preclusion as to the claims at issue (see 11 NYCRR 65-3.8 [g]). Plaintiff cross-moved [*2]for summary judgment. The Civil Court granted the branch of defendant’s motion based on fraudulent procurement and denied plaintiff’s cross motion. The court did not pass on the branch of defendant’s motion that was based upon the alternate fee schedule ground.

The defense that an insured made a material misrepresentation when obtaining the insurance policy is subject to preclusion (see Empire State Med. Supplies, Inc. v Sentry Ins., 55 Misc 3d 130[A], 2017 NY Slip Op 50403[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; Great Health Care Chiropractic, P.C. v Hanover Ins. Co., 42 Misc 3d 147[A], 2014 NY Slip Op 50359[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]). Thus, as plaintiff argues, defendant is not entitled to summary judgment on this ground as to the first cause of action, as defendant failed to offer proof that it ever denied the claim underlying that cause of action (see Empire State Med. Supplies, Inc. v Sentry Ins., 2017 NY Slip Op 50403[U]; Great Health Care Chiropractic, P.C. v Hanover Ins. Co., 2014 NY Slip Op 50359[U]), and so did not demonstrate that it is not precluded from raising this defense as to that claim.

Defendant did establish that it is not precluded from raising its material misrepresentation defense as to the claim underlying the second cause of action, as it demonstrated that it timely denied that claim on that ground (see Empire State Med. Supplies, Inc. v Sentry Ins., 2017 NY Slip Op 50403[U]; Great Health Care Chiropractic, P.C. v Hanover Ins. Co., 2014 NY Slip Op 50359[U]). However, a misrepresentation is only material “if the insurer would not have issued the policy had it known the facts misrepresented” (Interboro Ins. Co. v Fatmir, 89 AD3d 993, 994 [2011]). Here, the alleged material misrepresentation was the failure to reveal that the vehicle being insured was a “for hire” livery vehicle, which defendant’s underwriting supervisor stated is an excluded operation, claiming that defendant does not issue livery policies in New York State. However, as plaintiff contends, defendant failed to “present documentation concerning its underwriting practices, such as underwriting manuals, bulletins, or rules pertaining to similar risks, that show that it would not have issued the same policy if the correct information had been disclosed in the application” (id. at 994 [internal quotation marks omitted]). “Conclusory statements by insurance company employees, unsupported by documentary evidence, are insufficient to establish materiality as a matter of law” (Schirmer v Penkert, 41 AD3d 688, 690-691 [2007]). Consequently, defendant did not demonstrate as a matter of law that the misrepresentation was material (see Interboro Ins. Co. v Fatmir, 89 AD3d 993; Schirmer v Penkert, 41 AD3d 688; cf. Varshavskaya v Metropolitan Life Ins. Co., 68 AD3d 855 [2009]).

Plaintiff’s contention that its cross motion for summary judgment should have been granted lacks merit because, among other things, the proof submitted in support thereof failed to establish either that defendant failed to timely deny the claims at issue (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant issued timely denial of claim forms 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 the branch of defendant’s motion seeking summary judgment dismissing the complaint on the ground of fraudulent procurement of the insurance policy is denied, and the matter is remitted to the Civil Court for a determination of the branch of defendant’s motion seeking summary judgment dismissing the complaint on the [*3]alternate ground that the amounts sought to be recovered exceeded the amounts permitted by the workers’ compensation fee schedule.

WESTON, J.P., TOUSSAINT and BUGGS, JJ., concur.

Thomas Torto, for appellant. Glinkenhouse Queen (Alan Queen of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Laurentina McKetney Butler, J.), dated November 15, 2021. The order denied defendant’s motion to, in effect, recalculate a judgment of that court entered May 20, 2021 so as to exclude all statutory no-fault interest therein, and granted plaintiff’s cross motion to recalculate the May 20, 2021 judgment to include interest for the period from June 28, 2019 to May 20, 2021.

ORDERED that the order is modified by providing that defendant’s motion is granted to the extent of tolling statutory no-fault interest from March 14, 2002 to June 27, 2019; as so modified, the order is affirmed, without costs.

In 2000, plaintiff commenced this action to recover assigned first-party no-fault benefits for medical equipment provided to its assignor in connection with injuries allegedly sustained in a motor vehicle accident in July 1999. Defendant appeared and answered. Plaintiff moved for summary judgment and defendant failed to submit opposition. By order dated March 14, 2002, the Civil Court (James J. Golia, J.) granted plaintiff’s motion on default and awarded plaintiff judgment in the sum of $1,057 with interest from January 24, 2000. Approximately 17 years later, on June 27, 2019, plaintiff applied for the entry of judgment upon the Civil Court’s March 14, 2002 order. On May 20, 2021, judgment was entered in the sum of $107,441.02, including [*2]$105,862.22 in statutory no-fault interest from January 24, 2000 to June 27, 2019. Defendant moved for an order “vacating, re-settling and recalculating” the judgment to exclude all statutory no-fault interest based upon plaintiff’s delay in entering judgment. Plaintiff cross-moved pursuant to CPLR 5019 (a) to recalculate the judgment to include interest for the period from June 28, 2019, the day after plaintiff applied for entry of judgment, to May 20, 2021, the date the clerk entered judgment. By order entered November 15, 2021, the Civil Court (Laurentina McKetney Butler, J.) denied defendant’s motion and granted plaintiff’s cross motion.

Statutory no-fault interest (see Insurance Law § 5106 [a]), which is 2 percent per month, is meant to be a penalty for an insurer’s failure to pay a valid claim, and it applies to both pre- and post-judgment interest (Matter of B.Z. Chiropractic, P.C. v Allstate Ins. Co., 197 AD3d 144, 156 [2021]). However, the no-fault regulations provide that, “[i]f an applicant has submitted a dispute to arbitration or the courts, interest shall accumulate, unless the applicant unreasonably delays the arbitration or court proceeding” (former 11 NYCRR 65.15 [h] [now 11 NYCRR 65-3.9 (d)]). This court has rejected the argument that tolling should not apply simply “because [the] defendant could have attempted to move the case forward” (Aminov v Country Wide Ins. Co., 43 Misc 3d 87, 89 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]), and held instead that a no-fault plaintiff “should not be rewarded for . . . years of inaction by receiving a windfall of interest” (id.). Similarly, here, plaintiff should not be rewarded with a huge sum of interest for inordinate delay in entering a judgment.

Contrary to plaintiff’s argument, this case is not analogous to the cases holding that interest should not be tolled between a settlement and the entry of a judgment upon that settlement agreement (see e.g. Seaside Rehabilitation v Allstate Ins. Co., 63 Misc 3d 162[A], 2019 NY Slip Op 50918[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]). A settlement is the resolution of a case to which both parties have agreed; accordingly, CPLR 5003-a requires a settling defendant to pay that mutually agreed-upon amount within three weeks (see CPLR 5003-a [a] [“any settling defendant . . . shall pay all sums due to any settling plaintiff within twenty-one days of tender” of the required paperwork] [emphasis added]; Herman v Country-Wide Ins. Co., 76 Misc 3d 132[A], 2022 NY Slip Op 50916[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]). There is no such statutory mandate as to orders awarding summary judgment.

Therefore, the Civil Court should have granted defendant’s motion to the extent of tolling the accrual of statutory no-fault interest from March 14, 2002, the date of the order granting plaintiff summary judgment, to June 27, 2019, the date plaintiff applied to enter judgment based upon that order (see Herman, 2022 NY Slip Op 50916[U]). The Civil Court correctly declined to toll the accrual of interest from January 24, 2000 to March 13, 2002, which interest was awarded by the March 14, 2002 order, as there has been no finding that plaintiff unreasonably delayed this case during that period. For the same reason, the Civil Court correctly granted plaintiff’s cross motion to recalculate the judgment to include interest from June 28, 2019 to May 20, 2021, the time between plaintiff’s application for judgment and the clerk’s entry of judgment.

Accordingly, the order is modified by providing that defendant’s motion is granted to the extent of tolling statutory no-fault interest from March 14, 2002 to June 27, 2019.

WESTON, J.P., TOUSSAINT and BUGGS, JJ., concur.

Decided on December 9, 2022

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Decided on December 9, 2022

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for appellant. Hollander Legal Group, P.C. (Allan S. Hollander of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Odessa Kennedy, J.), entered August 3, 2021. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

ORDERED that the order is modified by providing that defendant’s 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 granting defendant’s motion for summary judgment dismissing the complaint on the ground that plaintiff failed to appear for duly scheduled examinations under oath (EUOs), and denying plaintiff’s cross motion for summary judgment. Plaintiff argues on appeal that defendant failed to establish that it timely denied the claim at issue.

After receipt of the claim, defendant scheduled EUOs to be held on January 8, 2018, March 20, 2018, May 23, 2018 and July 12, 2018; plaintiff did not appear on any of those dates. Shortly before each scheduled date, plaintiff sent defendant a letter, essentially stating that plaintiff would not be able to attend until an unspecified time months later and, among other [*2]things, improperly demanding $3,500 as up-front reimbursement for its travel expenses and time (see MSB Physical Therapy, P.C. v Nationwide Ins., 76 Misc 3d 131[A], 2022 NY Slip Op 50902[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]; Parisien v Travelers Ins. Co., 75 Misc 3d 143[A], 2022 NY Slip Op 50622[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]). Defendant sent letters back to plaintiff stating, among other things, that defendant would or had placed a statement on the record documenting plaintiff’s “default” in appearing on each scheduled date.

In a letter to defendant’s attorney dated June 28, 2018, plaintiff’s attorney claimed that there were “no EUO ‘no-show’ dates” because it had “duly request[ed]” adjournments. On July 17, 2018, defendant’s attorney sent a letter in response that stated that plaintiff had “failed to appear for EUOs on January 8, 2018, March 20, 2018, May 23, 2018 and July 12, 2018.” On July 19, 2018, defendant denied the claim on the ground, among others, that plaintiff had failed “to submit to the [EUO] scheduled for 01/08/2018, 03/20/2018, 05/23/2018 and 07/12/2018.”

Although defendant’s July 19, 2018 denial was issued well after 30 days had passed from plaintiff’s second nonappearance on March 20, 2018 (see Quality Health Supply Corp. v Nationwide Ins., 69 Misc 3d 133[A], 2020 NY Slip Op 51226[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]), defendant’s position is that its denial was nonetheless timely. Defendant notes in its brief that, under the no-fault regulations, insurers are not to treat their insureds in an adversarial fashion (see 11 NYCRR 65-3.2 [b]), and argues that it was abiding by that principle in accommodating plaintiff by offering “additional opportunities to appear in accordance with plaintiff’s own requests” (emphasis in original). Thus, defendant contends, the facts herein are distinguishable from Quality Health Supply Corp. (2020 NY Slip Op 51226[U]) and defendant should not be “penalized” for attempting to work with plaintiff. Moreover, defendant argues, the regulations do not restrict the number of EUOs an insurer may seek.

While we agree that there is nothing in the no-fault regulations preventing an insurer from offering a claimant more than two opportunities to appear for an EUO, that issue is distinct from whether an insurer has properly continued a toll of its time to pay or deny a particular claim (see 11 NYCRR 65-3.6 [b]). Although plaintiff had informed defendant before each scheduled EUO date that it would not appear, defendant does not claim that it had agreed to reschedule any of the EUOs, which rescheduling would not constitute a failure to appear (see Five Boro Psychological Servs., P.C. v Utica Mut. Ins. Co., 41 Misc 3d 140[A], 2013 NY Slip Op 52005[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]). Instead, defendant placed a statement on the record for each date documenting the nonappearance, told plaintiff by letter that it had “failed to appear for EUOs on January 8, 2018, March 20, 2018, May 23, 2018 and July 12, 2018,” and based its denial on plaintiff’s failure “to submit to the [EUO] scheduled for 01/08/2018, 03/20/2018, 05/23/2018 and 07/12/2018.” Indeed, in its brief, defendant states that it is not arguing “that one or more of the EUO no-shows should ‘not count.’ ” While defendant characterizes this as seeking to accommodate plaintiff, an insurer cannot indefinitely extend its toll of the time to pay or deny a claim after a second nonappearance at a scheduled EUO by scheduling successive additional EUOs until the insurer unilaterally decides that it has offered enough opportunities to appear and [*3]end its toll.

Thus, plaintiff correctly argues that defendant’s motion should have been denied, as defendant failed to establish that it timely denied the claim at issue (see Island Life Chiropractic Pain Care, PLLC v 21st Century Ins. Co., 74 Misc 3d 17 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]; Quality Health Supply Corp., 2020 NY Slip Op 51226[U]) and, therefore, defendant has not established that it is not precluded from raising plaintiff’s nonappearance at duly scheduled EUOs as a defense (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2009]).

Contrary to plaintiff’s further contention, plaintiff failed to demonstrate its prima facie entitlement to summary judgment, as the affidavit plaintiff submitted in support of its cross motion failed to establish that the claim 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 a timely denial of claim form that was 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 motion for summary judgment dismissing the complaint is denied.

WESTON, J.P., TOUSSAINT and BUGGS, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 9, 2022