Decided on May 12, 2017

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

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Rubin, Fiorella & Friedman, LLP (Conrad Horowitz, Esq.) for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Terrence C. O’Connor, J.), entered October 23, 2015. The order, insofar as appealed from as limited by the brief, sua sponte, awarded defense counsel “$250 in fees.”

ORDERED that the appeal is dismissed.

Plaintiff commenced this action to recover first-party no-fault benefits for medical supplies provided to its assignor, who allegedly had sustained injuries in a motor vehicle accident which had occurred on June 26, 2010. Defendant moved for summary judgment dismissing the complaint on the ground that the action was barred by the doctrines of res judicata and collateral estoppel by virtue of an order it had obtained against this provider, among others, in a Supreme Court declaratory judgment action involving the same motor vehicle accident. Plaintiff opposed defendant’s motion and cross-moved for various types of relief. The Civil Court, in an order entered October 23, 2015, granted defendant’s motion for summary judgment dismissing the complaint, denied plaintiff’s cross motion and, sua sponte, awarded defense counsel “$250 in fees.” Plaintiff appeals, as limited by its brief, from so much of the order as awarded defense counsel “$250 in fees.”

We assume that the Civil Court, in making its award, was relying upon Rules of the Chief Administrator of the Courts (22 NYCRR) § 130-1.1 (a), which permits a court, on its own initiative, to award “to any party or attorney . . . costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney’s fees, resulting from frivolous conduct.”^[FN1] While a court may make such award on its own initiative (after affording the parties a reasonable opportunity to be heard and setting forth its findings in a written decision), we note that no appeal as of right lies from the portion of an order which is decided sua sponte (see CCA 1702 [a] [2]; Sholes v Meagher, 100 NY2d 333 [2003]), and we decline to grant leave to appeal. We further note that plaintiff “could properly have moved to vacate the order and appealed as of right” to this court in the event that such motion was denied (Sholes v Meagher, 100 NY2d at 335; see CCA 1702 [a] [3]).

Accordingly, the appeal is dismissed.

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

ENTER:

Paul Kenny

Chief Clerk

Decision Date: May 12, 2017

Footnotes

Footnote 1: It is unlikely that the Civil Court intended to award motion costs, since the court is limited to awarding an amount not in excess of $50 (see CCA 1906 [a]) and since such an award is generally made to a party in the litigation and not to counsel.

HUCV 371-16
James F. Matthews, J.

Upon the following papers numbered 1 to 27 read on this motion by plaintiff for an order to quash subpoena and defendant’s motion to strike Notice of Trial by Notice of Motion / Order to Show Cause and supporting papers 1-10, 11-16; Notice of Cross Motion and supporting papers; Answering Affidavits and supporting papers 17-22 ; Replying Affidavits and supporting papers 23-27 ; Filed papers; Other; it is,

ORDERED that the motion by plaintiff brought by order to show cause, seeking to quash the subpoena issued to its non-party bank, J.P. Morgan Chase Bank, by defendant’s counsel, and the notice of motion brought by defendant, seeking to strike the plaintiff’s Notice of Trial and Certificate of Readiness, and to remove the matter from the trial calendar, are consolidated; and it is further

ORDERED that the motion by plaintiff seeking to quash the subpoena issued by defendant’s counsel to plaintiff’s non-party bank, J.P. Morgan Chase Bank, is denied; and it is further

ORDERED that the stay issued by the Court, is hereby vacated, and the subpoena duces tecum issued by defendant to J.P. Morgan Chase Bank is valid and enforceable by the issuing party; and it is further

ORDERED that the motion by defendant to strike the Notice of Trial and Certificate of Readiness dated December 22, 2016, filed by plaintiff pursuant to 22 NYCRR §212.17(a), is granted, and the action shall be stricken from the trial calendar pursuant to 22 NYCRR §212.17(c).^[FN1] The Clerk of the Court is directed to strike the action from the trial calendar.

This is an action by plaintiff health care provider seeking recovery of payment for [*2]medical services rendered on 10/04/12- 02/21/13 in the total sum of $7,286.21, as the result of a car accident of plaintiff’s assignor, under New York’s No-Fault Law.

Defendant caused a subpoena duces tecum to be served, by fax, on plaintiff’s non-party bank, J.P. Morgan Chase Bank, of which receipt and acceptance was acknowledged in a letter attached as an exhibit by defendant. It required production of bank records, including copies of banking statements, canceled checks, deposit slips, signature cards, corporate resolutions, account authorizations, bank account registers, ledgers and electronic transfers for plaintiff for the years 2012 through the present, for all accounts titled in the name of Harden Street Medical, PC, including Account number 978760122.

Plaintiff moves by order to show cause for a protective order pursuant to CPLR 2304, seeking to quash the subpoena duces tecum. Plaintiff objects to the service by fax on the non-party bank, J.P. Morgan Chase Bank, stating it was improperly served. Plaintiff complains the subpoena is being improperly used as a “fishing expedition” for discovery or for the existence of evidence. Plaintiff also protests the subpoena fails to set forth factual predicates for the relief sought, and the material requested is overbroad and an unsupportable demand for discovery.In opposition to plaintiff’s motion to quash, defendant submits an affidavit from an employee and Manager of the Medical Fraud Division, who was previously a Fraud Investigator for defendant, as well as an employee in claims and the Special Investigative Units. He submits the factual findings of his investigative report, which include certain patterns that are notoriously indicative of fraudulent situations involving no-fault claims, including inter-relationships with different named medical entities and management companies, and named individuals, based at the same address. Defendant asserts its demands are properly within a subpoena duces tecum, and are material and necessary to search for Mallella fraud claims (see State Farm v Mallella, 4 NY3d 313 [2005]).^[FN2]

Defendant also moves by motion to strike the Notice of Trial and Certificate of Readiness dated 12/22/16, which was filed by plaintiff pursuant to 22 NYCRR §212.17.^[FN3] Defendant asserts that plaintiff has failed to comply with the discovery demands of defendant, and yet filed a Certificate of Readiness and Notice of Trial with the Court.

The Court notes that plaintiff has not denied defendant’s assertion that plaintiff has not complied with the discovery demands of defendant, including outstanding interrogatories, notice for discovery and inspection pursuant to CPLR 3101, and notice to take deposition upon oral examination. Indeed, counsel for defendant submits his affirmation in support of the motion to strike, stating that “there is pending discovery in the within matter, this matter is not ready to be [*3]placed on the trial calendar, and the Court has been incorrectly informed by plaintiff’s counsel that discovery has been completed…”

Here, the Court finds that defendant has complied with the notice requirement of CPLR 3101[a][4] in stating on the face of the subpoena “the circumstances or reasons such disclosure is sought or required” (see Matter of Kapon v Koch, 23 NY3d 32 [2014]; Jamaica Wellness Med. P.C. v USAA Cas. Ins. Co., 49 Misc 3d 926 [Civ Ct of City of New York, Kings Cty 2015]).

The Court further determines that defendant has demonstrated its discovery demands are both material and necessary (see CPLR 3101[a]; State Farm Mut. Auto. Ins. Co. v Mallela, supra), and “is in keeping with this state’s policy of liberal discovery” (see Matter of Kapon v Koch, supra at 39). There is no requirement that the subpoenaing party demonstrate that it cannot obtain the requested disclosure materials from any other source (Id. at 38). The use of the words “material and necessary” must be interpreted to require disclosure “of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity” (Id. at 38, citing Allen v Crowell-Collier Publ. Co., 21 NY2d 403 [1968]).

Disclosure from a non-party “requires no more than a showing that the requested information is relevant to the prosecution or defense of the action” (see Bianchi v Galster Management Corp., 131 AD3d 558 [2nd Dept 2015]). Therefore, plaintiff’s objections to the disclosure demands in the subpoena lack sufficient merit (see also One Beacon Ins. Group, LLC. v Midland Med. Care, P.C., 54 AD3d 738 [2nd Dept 2008]; Q-B Jewish Med.Rehabilitation, P.C. v Allstate Ins. Co., 33 Misc 3d 64 [App. Term, 2nd Dept 2011]).

The Court also determines that plaintiff’s motion to quash the subpoena has failed in its burden to demonstrate that the discovery sought is “utterly irrelevant” to the action or that the “futility of the process to uncover anything legitimate is inevitable or obvious” (Id. at 34; CPLR 3103[a]). The burden is on the moving party to establish the need for a protective order (see Vivitorian Corp. v First Cent. Ins. Co., 203 AD2d 452, 453 [2nd Dept 1994]; CPLR 3103[a]). Also, a motion for a protective order is addressed to the sound discretion of the Court (see Jamaica Wellness Med. P.C. v USAA Cas. Ins. Co., supra).

In the view of the Court, defendant is entitled to financial records to ascertain whether the health care provider is actually ineligible to recover assigned no-fault benefits (see State Farm Mut. Auto. Ins. Co. v Mallela, supra; All Boro Psychological Services, P.C. v Auto One Ins. Co., 35 Misc 3d 136[A][App Term, 2nd, 11th & 13th Jud Dists, 2012]), including corporate tax returns and tax records (see 62-41 Woodhaven Med. P.C. v Adirondack Ins. Exch., 30 Misc 3d 131[A][App Term, 2nd, 11th & 13th Jud Dists 2011], and bank records to show whether disproportionate shares of a professional corporation’s revenue is evidence of ownership and/or control by an unlicensed individual (see One Beacon Ins. Group, LLC. v Midland Med. Care, P.C., supra).

Moreover, plaintiff’s argument that defendant improperly served the subpoena duces tecum, by fax, on plaintiff’s non-party bank, is unavailing. The bank accepted service of the subpoena without objection.

Therefore, plaintiff’s motion to quash the subpoena duces tecum served by defendant on plaintiff’s non-party bank, J.P. Morgan Chase Bank, is denied. The stay by the Court is lifted and the subpoena duces tecum remains valid and enforceable by defendant.

The motion by defendant to strike the Notice of Trial and Certificate of Readiness dated [*4]December 22, 2016, filed by plaintiff, is granted, to the extent that the action shall be stricken from the calendar pursuant to 22 NYCRR §212.17(c). The Clerk of the Court is directed to strike the action from the calendar.

The foregoing constitutes the decision and order of this Court. Submit judgment.

Dated: May 11, 2017

Hon. James F. Matthews J.D.C.

Footnotes

Footnote 1:Defendant’s counsel seeks to strike plaintiff’s Notice of Trial and Certificate of Readiness pursuant to 22 NYCRR §208.17, however, the correct cite is 22 NYCRR §212.17.

Footnote 2:Mallella permits insurance carriers with no-fault claims to pursue fraud investigations for good cause and withhold reimbursement from fraudulently licensed medical corporations.

Footnote 3:The Court notes that defendant does not move to compel discovery pursuant to CPLR 3124. Therefore, the Court makes no ruling in this regard, other than stated within this decision.The Court also notes the motion to strike the Notice of Trial and Certificate of Readiness was timely brought within 20 days pursuant to 22 NYCRR §212.17[c], and this was not raised by any party as an issue. Both motions, by plaintiff and by defendant, were marked submit on the same date, and have been consolidated by the Court for the within rendered decision.

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. McCormack & Mattei, P.C. (Florina Amlakh, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered May 12, 2015. The order granted defendant’s motion for summary judgment dismissing the complaint.

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

Plaintiff commenced this action on January 25, 2012 to recover assigned first-party no-fault benefits for medical supplies provided to its assignor, who had allegedly sustained injuries in a motor vehicle accident on May 28, 2011. Defendant served its answer on February 12, 2012. On July 27, 2012, defendant commenced a declaratory judgment action in the Supreme Court, Nassau County, against plaintiff herein, seeking a declaration that defendant was under no obligation to pay any of plaintiff’s claims arising from the accident at issue, since plaintiff had failed to comply with a condition precedent to reimbursement of first-party no-fault benefits by failing to appear for duly scheduled examinations under oath. Plaintiff did not appear or serve an answer in the Supreme Court declaratory judgment action. By judgment entered January 28, 2013, the Supreme Court granted defendant a declaratory judgment on default, and, on April 1, 2013, the default judgment was served with notice of entry on plaintiff. On January 9, 2014, defendant moved in the Civil Court for summary judgment dismissing the complaint on the ground that plaintiff’s action is barred by virtue of the declaratory judgment. In opposition, plaintiff argued that there is no preclusive effect from the declaratory judgment because there is no identity of issues between the present action and the declaratory judgment action. By order [*2]entered May 12, 2015, the Civil Court granted defendant’s motion.

In light of the Supreme Court’s declaratory judgment, the Civil Court properly granted defendant’s motion under the doctrine of res judicata (see EBM Med. Health Care, P.C. v Republic W. Ins., 38 Misc 3d 1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]), as any judgment in favor of plaintiff in the present action would destroy or impair rights or interests established by the judgment in the declaratory judgment action (see Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304, 306-307 [1929]; Flushing Traditional Acupuncture, P.C. v Kemper Ins. Co., 42 Misc 3d 133[A], 2014 NY Slip Op 50052[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]). We note that those issues that plaintiff raises for the first time on appeal are unpreserved for appellate review and have not been considered by this court (see Gulf Ins. Co. v Kanen, 13 AD3d 579 [2004]).

Accordingly, the order is affirmed.

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

Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum, Esq.), for appellant. Law Office of Ilona Finkelshteyn, P.C., for respondent, (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine Levine, J.), entered May 14, 2015. The order denied defendant’s motion to vacate a prior order of the same court entered January 27, 2014 granting, upon defendant’s default in submitting written opposition, plaintiff’s motion for summary judgment, and the judgment entered pursuant thereto on February 14, 2014 and, upon such vacatur, for summary judgment dismissing the complaint.

ORDERED that 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, after one adjournment, the Civil Court, by order entered January 27, 2014, granted the motion without opposition from defendant. A judgment was entered pursuant to that order on February 14, 2014. Subsequently, defendant moved to vacate the judgment and order, contending, insofar as is relevant to the arguments raised by defendant on appeal, that it had a reasonable excuse for its default and a meritorious defense to the action (see CPLR 5015 [a] [1]), and, upon such vacatur, for summary judgment dismissing the complaint. By order dated May 14, 2015, the Civil Court denied defendant’s motion, finding that defendant had not provided a reasonable excuse for its default.

The Civil Court did not improvidently exercise its discretion in denying defendant’s motion. A claim of law office failure may be accepted as a reasonable excuse (see CPLR 2005) where the claim is supported by a “detailed and credible” explanation of the default (Henry v Kuveke, 9 AD3d 476, 479 [2004]; State Farm Mut. Auto. Ins. Co. v Preferred Trucking Serv. [*2]Corp., 42 Misc 3d 88, 90 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]). Here, none of defendant’s attorney’s allegations explain why defendant failed to timely submit written opposition to plaintiff’s motion for summary judgment. Consequently, it is unnecessary to determine whether defendant demonstrated the existence of a potentially meritorious opposition to plaintiff’s motion for summary judgment (see Herrera v MTA Bus Co., 100 AD3d 962 [2012]; Wells Fargo Bank, N.A. v Cervini, 84 AD3d 789 [2011]).

Accordingly, the order is affirmed.

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

The Law Office of Gregory A. Goodman, P.C., for appellant. Law Offices of Daniel J. Tucker (Raquel Williams, Esq.), for respondent.

Appeal from an order of the District Court of Suffolk County, Fourth District (James F. Matthews, J.), dated April 19, 2016. 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 District Court which granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

With respect to plaintiff’s claim for $1,310.94, the affidavits defendant submitted in support of its motion do not establish, prima facie, that the assignor failed to appear at two scheduled independent medical examinations (IMEs), since we do not consider a mutual rescheduling, which occurs prior to the date of that scheduled IME, to constitute a failure to appear (see DVS Chiropractic, P.C. v Interboro Ins. Co., 36 Misc 3d 136[A], 2012 NY Slip Op 51443[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]; Vitality Chiropractic, P.C. v Kemper Ins. Co., 14 Misc 3d 94 [App Term, 2d Dept, 2d & 11th Jud Dists 2006]). As defendant did not demonstrate that there had been a failure to appear at both an initial and a follow-up IME, defendant did not establish that plaintiff had failed to comply with a condition precedent to coverage (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). However, plaintiff is not entitled to summary judgment with respect to this claim since the record does not establish, as a matter of law, that defendant’s denial of claim form, which denied the claim on the ground that plaintiff’s assignor had failed to appear for two [*2]duly scheduled IMEs, was untimely or that such a defense lacks merit.

With respect to plaintiff’s claim for $1,019.62, although the affidavit of defendant’s no-fault examiner was sufficient to show that defendant had never received that claim, the affidavit of plaintiff’s employee, in which the affiant stated that he had personally generated and mailed plaintiff’s $1,019.62 claim to defendant, was sufficient to give rise to the presumption that the claim had been received by defendant (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). Consequently, a triable issue of fact exists as to the submission of the $1,019.62 claim (see Lenox Hill Radiology v Great N. Ins. Co., 50 Misc 3d 142[A], 2016 NY Slip Op 50206[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2016]; Compas Med., P.C. v 21st Century Ins. Co., 47 Misc 3d 128[U], 2015 NY Slip Op 50388[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; Healing Health Prods., Inc. v New York Cent. Mut. Fire Ins. Co., 44 Misc 3d 59 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; cf. Bright Med. Supply Co. v Tri State Consumer Ins. Co., 40 Misc 3d 130[A], 2013 NY Slip Op 51122[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]). Consequently, neither defendant nor plaintiff was entitled to summary judgment on this claim.

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

Marano, P.J., Garguilo and Brands, JJ., concur.

Gabriel & Shapiro, LLC (Steven F. Palumbo, Esq.), for appellant. Law Office of Bryan M. Rothenberg (Kenneth F. Popper, Esq.), for respondent.

Appeal from an amended order of the District Court of Suffolk County, Third District (C. Stephen Hackeling, J.), dated January 20, 2016. The amended order, insofar as appealed from as limited by the brief, granted the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover for services billed under CPT codes 97026 and 97016.

ORDERED that, on the court’s own motion, the notice of appeal from an order dated December 23, 2015 is deemed a premature notice of appeal from the amended order dated January 20, 2016 (see CPLR 5520 [c]); and it is further,

ORDERED that the amended order, insofar as appealed from, is reversed, without costs, and the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover for services billed under CPT codes 97026 and 97016 are denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint, arguing that it had paid plaintiff for the services at issue in accordance with the workers’ compensation fee schedule. In an amended order dated January 20, 2016, the District Court granted defendant’s motion in its entirety. On appeal, plaintiff argues that the District Court should have denied the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover for services billed under CPT codes 97026 and 97016.

Upon a review of the record, we find that defendant failed to demonstrate, prima facie, that it had properly denied payment for the unpaid portions of the bills for services billed under [*2]CPT codes 97026 and 97016 in accordance with the workers’ compensation fee schedule (see Sama Physical Therapy, P.C. v American Tr. Ins. Co., 53 Misc 3d 129[A], 2016 NY Slip Op 51359[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]; W.H.O. Acupuncture, P.C. v Progressive Preferred Ins. Co., 36 Misc 3d 133[A], 2012 NY Slip Op 51335[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]).

Accordingly, the amended order, insofar as appealed from, is reversed and the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover for services billed under CPT codes 97026 and 97016 are denied.

Marano, P.J., Garguilo and Brands, JJ., concur.

Decided on April 27, 2017

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS

Decided on April 27, 2017

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS

Gabriel & Shapiro, LLC (Steven F. Palumbo, Esq.), for appellant. Bruno, Gerbino & Soriano, LLP (Mitchell L. Kaufman, Esq.), for respondent.

Appeal from an order of the District Court of Suffolk County, Third District (C. Stephen Hackeling, J.), dated Jfune 1, 2015. The order, upon a motion by defendant for summary judgment dismissing the complaint with prejudice on the ground that plaintiff’s assignor failed to appear for examinations under oath, granted defendant’s motion to the extent of dismissing the complaint without prejudice on the ground that the action was premature, and denied plaintiff’s cross motion for summary judgment.

ORDERED that the order is modified by providing that, upon searching the record, defendant’s motion for summary judgment dismissing the complaint with prejudice is granted; 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 plaintiff’s assignor had failed to appear for duly scheduled examinations under oath (EUOs), and plaintiff cross-moved for summary judgment. In opposition to defendant’s motion, plaintiff attached copies of letters to defendant stating, among other things, that, since its principal had testified at a previous EUO on January 11, 2013, plaintiff had “complied with its obligations under the no-fault regulations.” Plaintiff appeals from an order of the District Court which granted defendant’s motion for summary judgment dismissing the complaint on the ground that the action was premature, and denied plaintiff’s cross motion.

At the outset we note that plaintiff failed to establish that it had mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) the objection letters that it attached to its opposition papers (see generally Crescent Radiology, PLLC v American Tr. Ins. Co., 31 Misc 3d 134[A], 2011 NY Slip Op 50622[U] [App Term, 9th & 10th Jud Dists [*2]2011] [where a plaintiff fails to object to an EUO request at the time it is requested, the plaintiff’s objections to the request may not be raised for the first time during litigation]). In any event, the no-fault regulations provide that an insurer may request that a provider submit to an EUO as may reasonably be required (see 11 NYCRR 65-1.1 [b]) and, here, defendant demonstrated that the requests for the EUOs at issue pertain to claims which it had received after the January 11, 2013 EUO had been conducted.

Upon a review of the record, we find that the affidavits submitted by defendant established that the EUO scheduling letters and the denial of claim forms had been timely mailed in accordance with defendant’s standard office practices and procedures (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123). Furthermore, defendant established, based upon the personal knowledge of the attorney who was responsible for conducting the EUOs at issue, that plaintiff 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]).

We note that the District Court stated that it was granting defendant’s motion because “defendant’s verification request remained outstanding[,] leaving the defendant insurer under no obligation to pay or deny the claim rendering the plaintiff’s claim for payment premature.” Thus, the District Court’s dismissal of the complaint was implicitly without prejudice. However, an appearance at an EUO “is a condition precedent to the insurer’s liability on the policy” (Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 722 [2006]), and defendant timely denied the claims at issue on that ground. As a result, upon searching the record (see Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106 [1984]), we find that defendant is entitled to summary judgment dismissing the complaint with prejudice.

We further note that there is no merit to plaintiff’s argument that the order of the District Court should be reversed because it was not made in accordance with CPLR 4213 (b), as that statute pertains to decisions after a bench trial. The record shows that the court determined the parties’ motion and cross motion in accordance with CPLR 2219 (a), the applicable statute.

Accordingly, the order is modified by providing that, upon searching the record, defendant’s motion for summary judgment dismissing the complaint with prejudice is granted.

Iannacci, J.P., Tolbert and Brands, JJ., concur.