Decided on December 10, 2021

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

Bryan Cave, LLP (Mathtew Sarles and Adam S. Bird-Ridnell of counsel), for appellant. The Rybak Firm, PLLC (Oleg Rybak of counsel), for respondent (no brief filed). Separate

appeals from orders of the Civil Court of the City of New York, Kings County (Louis L. Nock, J.), entered December 20, 2017 and dated April 10, 2019, respectively, and from an order of the same court (Sandra E. Roper, J.), entered April 22, 2019. The order entered December 20, 2017 denied defendant’s motion which had sought summary judgment dismissing the complaint on the ground that, pursuant to a declaratory judgment entered in the Supreme Court, New York County, defendant had no duty to provide coverage for the accident at issue in this case. The order dated April 10, 2019 denied defendant’s motion which, in effect, had sought leave to reargue defendant’s prior motion seeking summary judgment dismissing the complaint. The order entered April 22, 2019 denied defendant’s cross motion which had sought summary judgment dismissing the complaint on the ground that the action was commenced after the statute of limitations had expired.

ORDERED that, on the court’s own motion, the appeals are consolidated for purposes of disposition; and it is further,

ORDERED that the order entered April 22, 2019 is reversed, with $30 costs, and defendant’s cross motion for summary judgment dismissing the complaint is granted; and it is further,

ORDERED that the appeals from the orders entered December 20, 2017 and dated April 10, 2019, respectively, are dismissed as academic.

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, pursuant to a declaratory judgment entered in the Supreme Court, New York County, defendant had no duty to provide coverage for the accident at issue in this case. By order entered December 20, 2017, the Civil Court (Louis L. Nock, J.) denied defendant’s motion for summary judgment. Defendant [*2]then moved for what it denominated as leave to renew its motion seeking summary judgment dismissing the complaint and plaintiff opposed such motion. While the motion purportedly seeking renewal was pending, plaintiff moved for summary judgment. Defendant cross-moved for summary judgment dismissing the complaint on the ground that the action had been commenced after the statute of limitations had expired. By order dated April 10, 2019, the Civil Court (Louis L. Nock, J.) denied defendant’s motion, stating that while it was denominated as one seeking renewal, it was actually an untimely motion seeking leave to reargue defendant’s prior motion which had sought summary judgment dismissing the complaint. By order entered April 22, 2019, the Civil Court (Sandra E. Roper, J.) noted that plaintiff had withdrawn its motion seeking summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint.

A review of the record reveals that defendant has established, as a matter of law, that the vehicle in which plaintiff’s assignor was a passenger when the accident occurred was owned by U-Haul, Inc., that the vehicle was self-insured by U-Haul, Inc., that defendant did not insure the subject vehicle, and that defendant was a third-party claims handler which processed claims on behalf of U-Haul, Inc. In addition, the affidavit by plaintiff’s owner demonstrated that the claim at issue was mailed to defendant on December 22, 2010 and the action was not commenced until November 22, 2016. Consequently, defendant’s cross motion papers established, prima facie, that the action had been commenced after the expiration of the three-year statute of limitations applicable to self-insurers (see CPLR 214 [2]; Contact Chiropractic, P.C. v New York City Tr. Auth., 31 NY3d 187 [2018]). In opposition, plaintiff failed to raise an issue of fact as to the action’s timeliness. In light of the foregoing, the appeals from the orders entered December 20, 2017 and dated April 10, 2019, respectively, have been rendered academic. We reach no other issue.

Accordingly, the order entered April 22, 2019 is reversed, defendant’s cross motion for summary judgment dismissing the complaint is granted, and the appeals from the orders entered December 20, 2017 and dated April 10, 2019, respectively, are dismissed.

ALIOTTA, P.J., ELLIOT and GOLIA, JJ., concur.

Bryan Cave, LLP (Mathtew Sarles and Adam S. Bird-Ridnell of counsel), for appellant. The Rybak Firm, PLLC (Oleg Rybak of counsel), for respondent (no brief filed). Separate

appeals from orders of the Civil Court of the City of New York, Kings County (Louis L. Nock, J.), entered December 20, 2017 and dated April 10, 2019, respectively, and from an order of the same court (Sandra E. Roper, J.), entered April 22, 2019. The order entered December 20, 2017 denied defendant’s motion which had sought summary judgment dismissing the complaint on the ground that, pursuant to a declaratory judgment entered in the Supreme Court, New York County, defendant had no duty to provide coverage for the accident at issue in this case. The order dated April 10, 2019 denied defendant’s motion which, in effect, had sought leave to reargue defendant’s prior motion seeking summary judgment dismissing the complaint. The order entered April 22, 2019 denied defendant’s cross motion which had sought summary judgment dismissing the complaint on the ground that the action was commenced after the statute of limitations had expired.

ORDERED that, on the court’s own motion, the appeals are consolidated for purposes of disposition; and it is further,

ORDERED that the order entered April 22, 2019 is reversed, with $30 costs, and defendant’s cross motion for summary judgment dismissing the complaint is granted; and it is further,

ORDERED that the appeals from the orders entered December 20, 2017 and dated April 10, 2019, respectively, are dismissed as academic.

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, pursuant to a declaratory judgment entered in the Supreme Court, New York County, defendant had no duty to provide coverage for the accident at issue in this case. By order entered December 20, 2017, the [*2]Civil Court (Louis L. Nock, J.) denied defendant’s motion for summary judgment. Defendant then moved for what it denominated as leave to renew its motion seeking summary judgment dismissing the complaint and plaintiff opposed such motion. While the motion purportedly seeking renewal was pending, plaintiff moved for summary judgment. Defendant cross-moved for summary judgment dismissing the complaint on the ground that the action had been commenced after the statute of limitations had expired. By order dated April 10, 2019, the Civil Court (Louis L. Nock, J.) denied defendant’s motion, stating that while it was denominated as one seeking renewal, it was actually an untimely motion seeking leave to reargue defendant’s prior motion which had sought summary judgment dismissing the complaint. By order entered April 22, 2019, the Civil Court (Sandra E. Roper, J.) noted that plaintiff had withdrawn its motion seeking summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint.

A review of the record reveals that defendant has established, as a matter of law, that the vehicle in which plaintiff’s assignor was a passenger when the accident occurred was owned by U-Haul, Inc., that the vehicle was self-insured by U-Haul, Inc., that defendant did not insure the subject vehicle, and that defendant was a third-party claims handler which processed claims on behalf of U-Haul, Inc. In addition, the affidavit by plaintiff’s owner demonstrated that the claim at issue was mailed to defendant on December 22, 2010 and the action was not commenced until November 22, 2016. Consequently, defendant’s cross motion papers established, prima facie, that the action had been commenced after the expiration of the three-year statute of limitations applicable to self-insurers (see CPLR 214 [2]; Contact Chiropractic, P.C. v New York City Tr. Auth., 31 NY3d 187 [2018]). In opposition, plaintiff failed to raise an issue of fact as to the action’s timeliness. In light of the foregoing, the appeals from the orders entered December 20, 2017 and dated April 10, 2019, respectively, have been rendered academic. We reach no other issue.

Accordingly, the order entered April 22, 2019 is reversed, defendant’s cross motion for summary judgment dismissing the complaint is granted, and the appeals from the orders entered December 20, 2017 and dated April 10, 2019, respectively, are dismissed.

ALIOTTA, P.J., ELLIOT and GOLIA, JJ., concur.

Decided on December 10, 2021

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

Decided on December 10, 2021

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

Decided on December 10, 2021

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

Decided on December 10, 2021

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

[*1]

Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts, December 10, 2021

APPEARANCES OF COUNSEL

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

Law Offices of Buratti, Rothenberg & Burns (Konstantinos Tsirkas of counsel) for respondent.

Ordered that the order is modified by providing that the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the claim in the sum of $1,314 submitted on November 26, 2014, 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, defendant moved for summary judgment dismissing the complaint on the ground that defendant had timely denied the claims based upon plaintiff’s assignor’s failure to appear for duly scheduled examinations under oath (EUOs). Plaintiff opposed the motion and cross-moved for summary judgment. By order entered September 18, 2019, the Civil Court granted defendant’s motion and, in effect, denied plaintiff’s cross motion as untimely pursuant to the parties’ adjournment stipulation, which had been executed by both parties’ attorneys.

At issue are three claims, for $1,314, $620.07 and $620.07. Plaintiff alleges in its complaint that the claim for $1,314 was mailed to defendant on November 26, 2014, and that the two claims for $620.07 were each mailed on February 13, 2015. It{**74 Misc 3d at 19} is undisputed on this appeal that defendant scheduled EUOs of plaintiff’s assignor to be held on December 12, 2014, January 22, 2015, and February 17, 2015; that plaintiff’s assignor did not appear for any of these [*2]scheduled EUOs; that the November 26, 2014 claim was denied on February 24, 2015; and that the February 13, 2015 claims were denied on March 2, 2015. On appeal, plaintiff argues that defendant was required to deny all three claims within 30 days of plaintiff’s assignor’s failure to appear for the second scheduled EUO, on January 22, 2015, and therefore that defendant is precluded from raising this defense.

Plaintiff correctly argues that defendant, by claiming that it had mailed the denial of the November 26, 2014 claim on February 24, 2015, failed to establish, under the circumstances presented, that it had timely denied that claim. A no-fault claim must be paid or denied “within 30 calendar days after the insurer receives proof of claim” (11 NYCRR 65-3.8 [a] [1]; see e.g. New York & Presbyt. Hosp. v Allstate Ins. Co., 31 AD3d 512 [2006]). While it is not disputed on this appeal that defendant tolled its time to pay or deny the November 26, 2014 claim by timely scheduling an EUO of plaintiff’s assignor (see 11 NYCRR 65-3.8 [a] [1]; see also e.g. Sound Shore Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 106 AD3d 157 [2013]; Longevity Med. Supply, Inc. v IDS Prop. & Cas. Ins. Co., 44 Misc 3d 137[A], 2014 NY Slip Op 51244[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]), the toll ended when plaintiff’s assignor failed to appear at the second EUO on January 22, 2015 (Quality Health Supply Corp. v Nationwide Ins., 69 Misc 3d 133[A], 2020 NY Slip Op 51226[U], *1-2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]). As defendant did not demonstrate that it denied the November 26, 2014 claim within 30 days of the end of the toll, it has not demonstrated that it is not precluded from raising its proffered EUO no-show defense (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2009]; see also Nationwide Affinity Ins. Co. of Am. v Jamaica Wellness Med., P.C., 167 AD3d 192 [2018]) as to that claim, and the branch of defendant’s motion seeking summary judgment dismissing the November 26, 2014 claim should have been denied.

However, there is no merit to plaintiff’s argument that the branch of defendant’s motion seeking summary judgment dismissing the February 13, 2015 claims should have been denied because defendant was similarly required to deny those{**74 Misc 3d at 20} claims within 30 days of plaintiff’s assignor’s failure to appear on January 22, 2015. Rather, defendant demonstrated that those claims were properly denied on March 2, 2015, within 30 days of their receipt, based upon the prior nonappearance (see 11 NYCRR 65-3.8 [a]; ARCO Med. N.Y., P.C. v Lancer Ins. Co., 34 Misc 3d 134[A], 2011 NY Slip Op 52382[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).

It has been long held that “[t]he failure to comply with the provision of an insurance policy requiring the insured to submit to an examination under oath . . . is a material breach of the [no-fault] policy, precluding recovery of the policy proceeds” (Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2014] [internal quotation marks omitted]; see Nationwide Affinity Ins. Co. of Am. v Jamaica Wellness Med., P.C., 167 AD3d 192 [2018]). While this failure has been termed “a breach of a condition precedent to coverage under the no-fault policy” (Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [2011]; see Quality Health Supply Corp. v Nationwide Ins., 2020 NY Slip Op 51226[U]), it is more appropriately characterized as a “breach of an existing policy condition” (Nationwide Affinity Ins. Co. of Am. v Jamaica Wellness Med., P.C., 167 AD3d at 197). It would be contrary to 11 NYCRR 65-3.8 (a) (1), and, in effect, render that paragraph a nullity, if, as plaintiff suggests, a no-show defense were to expire 30 days after the second nonappearance—in this instance, defendant’s time to pay [*3]or deny the February 13, 2015 claims would have expired well before the 30 days permitted by the regulations. Indeed, under plaintiff’s interpretation, an eligible injured person and his or her assignees could simply wait 30 days after failing to appear to submit any new claims, and the insurer would then be prohibited from denying those claims based upon the nonappearance.

To the extent that plaintiff argues that a failure to timely deny any one claim based upon a nonappearance at an EUO or independent medical examination (IME) once that defense has accrued constitutes a waiver of the right to thereafter assert that defense as to any and all subsequent claims submitted upon the same covered event, that argument is without merit. In other words, defendant’s failure to timely deny the November 26, 2014 claim based on the January 22, 2015 nonappearance was not a waiver of defendant’s right to timely deny, as it did, the February 13, 2015 claims based upon the same prior nonappearance (see ARCO Med. N.Y., P.C. v Lancer Ins. Co., 2011{**74 Misc 3d at 21}  NY Slip Op 52382[U]). Each such claim is treated on an individual basis (cf. Shtarkman v Allstate Ins. Co., 8 Misc 3d 129[A], 2005 NY Slip Op 51028[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2005] [a “blanket” or “general” denial purporting to deny all future claims does not constitute a valid denial of any subsequent claim]; A&S Med. v Allstate Ins. Co., 196 Misc 2d 322 [App Term, 1st Dept 2003], affd 15 AD3d 170 [2005]). We note that, in this respect, EUO and IME nonappearances are treated differently from the failure to provide requested written verification, which is only a proper basis for the denial of claims for which the written verification was specifically requested and cannot, based on the regulations and the case law, be asserted as a basis for a denial of any subsequently submitted claim (see 11 NYCRR 65-3.8 [b] [3]; see generally Shtarkman v Allstate Ins. Co., 2005 NY Slip Op 51028[U]; A&S Med. v Allstate Ins. Co., 196 Misc 2d 322 [2003]).

Accordingly, the order is modified by providing that the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the claim in the sum of $1,314 submitted on November 26, 2014, is denied.

Aliotta, P.J., Weston and Toussaint, JJ., concur.

[*1]

Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts, December 10, 2021

APPEARANCES OF COUNSEL

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

Freiberg, Peck & Kang, LLP (Yilo J. Kang of counsel) for respondent.

Ordered that the order, insofar as appealed from, is affirmed, with $25 costs; and it is further ordered that, on the court’s own motion, counsel for the respective parties and Damin J.{**74 Misc 3d at 10} Toell, Esq., are directed to show cause why an order should or should not be made and entered imposing such sanctions and costs, if any, against The Rybak Firm, PLLC, and Damin J. Toell, Esq., pursuant to Rules of the Chief Administrator of the Courts (22 NYCRR) § 130-1.1 (c) as this court may deem appropriate, by each filing a digital copy of an affidavit or affirmation on that issue, with proof of service, onto the court’s digital portal, Records, Briefs & Motions Drop Off, found on the court’s website at: https://nycourts.sharepoint.com/sites/AT2-DCS/Site Pages/Home.aspx, on or before January 10, 2022; and it is further ordered that the clerk of this court, or his designee, is directed to serve a copy of this decision and order to show cause by regular mail upon counsel for the respective parties and Damin J. Toell, Esq.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved to dismiss the complaint pursuant to CPLR 3211 (a) (8). In multiple affidavits in support of the motion, defendant’s employees asserted that defendant is a Pennsylvania company, which is not licensed to do business in New York, maintains no offices in New York, has no agents operating out of, or representatives soliciting business in, New York, and does not own, use or [*2]possess any real property in New York. Furthermore, defendant argued that it had been held in prior cases that the courts in the State of New York cannot exercise personal jurisdiction over this defendant (see e.g. Matter of Eagle Ins. Co. v Gutierrez-Guzman, 21 AD3d 489 [2005]). Plaintiff cross-moved for summary judgment and opposed the motion with an affirmation of its counsel, who made unsupported assertions that, among other things, defendant had transacted business in New York by knowingly issuing policies to New York drivers, and that defendant had established an ongoing relationship with defense counsel in New York, thereby subjecting defendant to jurisdiction in New York. Defendant’s attorney asserted in a reply affirmation that the arguments raised by plaintiff had been rejected by this court in Compas Med., P.C. v American Ind. Ins. Co. (47 Misc 3d 134[A], 2015 NY Slip Op 50481[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Plaintiff appeals, as limited by its brief, from so much an order of the Civil Court entered February 5, 2018, as granted defendant’s motion to dismiss the complaint.

[1] Contrary to plaintiff’s contention, defendant made a prima facie showing that personal jurisdiction had not been obtained over it (see Gentlecare Ambulatory Anesthesia Servs. v {**74 Misc 3d at 11}American Ind. Ins. Co., 63 Misc 3d 144[A], 2019 NY Slip Op 50635[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; Lida’s Med. Supply, Inc. v American Ind. Ins. Co., 63 Misc 3d 137[A], 2019 NY Slip Op 50502[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; Pavlova v American Ind. Ins. Co., 60 Misc 3d 128[A], 2018 NY Slip Op 50943[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]). “In opposing a motion to dismiss the complaint pursuant to CPLR 3211 (a) (8) on the ground of lack of personal jurisdiction, a plaintiff need only make a prima facie showing that such jurisdiction exists” (Hopstein v Cohen, 143 AD3d 859, 860 [2016] [internal quotation marks omitted]; see also Lang v Wycoff Hgts. Med. Ctr., 55 AD3d 793 [2008]). In the case at bar, the affirmation of plaintiff’s attorney was insufficient to demonstrate that personal jurisdiction over defendant existed under the Civil Court’s long-arm statute (see CCA 404 [a]), as plaintiff’s counsel failed to establish that he possessed personal knowledge of the facts.

Plaintiff’s contention that Matter of American Ind. Ins. Co. v Nova Acupuncture, P.C. (137 AD3d 1270 [2016]) (Nova) stands for the proposition that New York courts might have personal jurisdiction over American Independent Insurance Company (AIIC) lacks merit. In Nova, the issue was limited to whether AIIC could be compelled to arbitrate a claim for first-party no-fault benefits. However, as the Appellate Division, Second Department, had previously noted, “[a]t this pre-arbitration stage, the issue is not whether New York courts have jurisdiction over AIIC, but whether the arbitrator has authority under the terms of the insurance contract to award no-fault benefits to the appellants” and “[w]hile personal jurisdiction is required for the exercise of the state’s judicial power over a party, arbitration is a form of dispute resolution almost wholly independent of the court system” (American Ind. Ins. Co. v Art of Healing Medicine, P.C., 104 AD3d 761, 762-763 [2013]).

To the extent plaintiff argues that “facts essential to justify opposition may exist but cannot then be stated” (CPLR 3211 [d]), this argument is not properly before us, as plaintiff’s contention that it needs discovery “regarding the nature and extent of [defendant’s] relationship with parent/subsidiary companies and, in particular, the extent of activity in New York State by these companies” is raised by plaintiff for the first time on appeal (see Copp v Ramirez, 62 AD3d 23 [2009]; Compas Med., P.C. v American Ind. Ins. Co., 47 Misc 3d 134[A], {**74 Misc 3d at 12}2015 NY Slip Op [*3]50481[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Even if the argument were properly before us, neither the unverified complaint nor the conclusory affirmation of plaintiff’s counsel in opposition to defendant’s motion constituted the “tangible evidence” (Mandel v Busch Entertainment Corp., 215 AD2d 455, 455 [1995]) necessary to substantiate plaintiff’s allegations that jurisdiction could exist, thereby demonstrating that plaintiff’s assertion of the existence of a jurisdictional predicate was not “frivolous” (Peterson v Spartan Indus., 33 NY2d 463, 467 [1974]). Thus, plaintiff did not make a “sufficient start” (id.) by showing that essential jurisdictional facts might exist to warrant discovery on the issue of personal jurisdiction over defendant (see Compas Med., P.C., 2015 NY Slip Op 50481[U]).

[2] We conclude that sanctions may be warranted for the conduct of The Rybak Firm, PLLC, and Damin J. Toell, Esq., as their conduct appears to be frivolous (see Flushing Expo, Inc. v New World Mall, LLC, 116 AD3d 826 [2014]; Ram v Torto, 111 AD3d 814 [2013]). As relevant here, frivolous conduct includes the assertion of arguments that are “completely without merit in law and [which] cannot be supported by a reasonable argument for an extension, modification or reversal of existing law” (Rules of Chief Admin of Cts [22 NYCRR] § 130-1.1 [c] [1]). Here, the appellant’s brief submitted on behalf of plaintiff is substantially the same as the appellant’s brief submitted by The Rybak Firm, PLLC, and Damin J. Toell, Esq., in Excel Prods., Inc. v American Ind. Ins. Co. (65 Misc 3d 157[A], 2019 NY Slip Op 51964[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]) in which, although the plaintiff provider was appealing from a 2017 order of the Civil Court which

“expressly stated that plaintiff’s arguments and the ‘evidence’ upon which plaintiff relied had previously been considered and rejected by this court and that plaintiff’s remaining arguments were either contrary to a prior decision by the Appellate Division, Second Department, or predicated upon ‘speculative factual arguments,’ plaintiff’s appellate brief d[id] not appear to mention, let alone address, the prior decisions of this court or of the Appellate Division which may have rendered plaintiff’s appellate arguments frivolous” (2019 NY Slip Op 51964[U], *2).

{**74 Misc 3d at 13}Similarly, the appellant’s brief submitted on behalf of plaintiff in the instant case is also substantially the same as the respondent’s brief submitted by The Rybak Firm, PLLC, and Damin J. Toell, Esq., in Parisien v American Ind. Ins. Co. (65 Misc 3d 157[A], 2019 NY Slip Op 51965[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]).

In light of the foregoing, the order, insofar as appealed from, is affirmed and, on the court’s own motion, counsel for the respective parties and Damin J. Toell, Esq., are directed to show cause why an order should or should not be made and entered imposing such sanctions and costs, if any, against The Rybak Firm, PLLC, and Damin J. Toell, Esq., pursuant to Rules of the Chief Administrator of the Courts (22 NYCRR) § 130-1.1 (c) as this court may deem appropriate, by each filing a digital copy of an affidavit or affirmation on that issue, with proof of service, onto the court’s digital portal, Records, Briefs & Motions Drop Off, found on the court’s website at: https://nycourts.sharepoint.com/sites/AT2-DCS/Site Pages/Home.aspx, on or before January 10, 2022.

Aliotta, P.J., Elliot and Golia, JJ., concur.

Gary Tsirelman, P.C. (Darya Klein 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 (Lorna J. McAllister, J.), entered March 18, 2019. The order, insofar as appealed from as limited by the brief, granted defendant’s motion for summary judgment dismissing the complaint and denied the branches of plaintiff’s cross motion seeking a “finding that Plaintiff’s prima facie case has been established” and an order sanctioning defendant.

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, defendant moved for summary judgment on the ground that plaintiff’s assignor had failed to appear at duly scheduled examinations under oath (EUOs). Plaintiff cross-moved for summary judgment or, in the alternative, for a “finding that Plaintiff’s prima facie case has been established,” and an order sanctioning defendant. Insofar as is relevant to this appeal, by order entered March 18, 2019, the Civil Court granted defendant’s motion and denied the branches of plaintiff’s cross motion seeking a “finding that Plaintiff’s prima facie case had been established” and an order sanctioning defendant.

Upon a review of the record, we find that a triable issue of fact exists as to whether the EUOs were scheduled to be held at a place which was “reasonably convenient” to plaintiff (see 11 NYCRR 65-3.5 [e]; Parisien v Metlife Auto & Home, 68 Misc 3d 126[A], 2020 NY Slip Op 50845[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]). In addition, there is also an issue of fact as to whether, prior to the EUO scheduled for October 14, 2016, the parties mutually agreed to reschedule the EUO (see DVS Chiropractic, P.C. v Interboro Ins. Co., 36 Misc 3d 138[A], 2012 NY Slip Op 51443[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]).

Plaintiff’s contention that the Civil Court should have granted the branches of plaintiff’s cross motion seeking a “finding that Plaintiff’s prima facie case has been established” and an order sanctioning defendant lacks merit.

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

ALIOTTA, P.J., ELLIOT and GOLIA, JJ., concur.