Appeal from an order of the Civil Court of the City of New York, Kings County (Pamela L. Fisher, J.), entered February 6, 2013. The order, insofar as appealed from, granted the branches of defendant’s motion seeking summary judgment dismissing the first, second, fifth and seventh causes of action, and so much of the third and fourth causes of action as sought to recover for services not billed under CPT Codes 97799 and 99203.

ORDERED that the order, insofar as appealed from, is modified by providing that the branches of defendant’s motion seeking summary judgment dismissing the fifth and seventh causes of action are denied; as so modified, the order, insofar as appealed from, 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. Defendant’s ground for dismissing the first through fourth and the sixth causes of action, which causes of action sought to recover upon the unpaid portions of the underlying claims which defendant had denied, was that the amounts sought exceeded the amounts permitted by the workers’ compensation fee schedule. Its ground for dismissing the fifth and seventh causes of action was that it had timely denied the underlying claims due to plaintiff’s assignor’s failure to attend duly scheduled independent medical examinations (IMEs). By order entered February 6, 2013, the Civil Court granted the branches of defendant’s motion seeking summary judgment dismissing the first, second, fifth and seventh causes of action and denied the branches of defendant’s motion seeking summary judgment dismissing the sixth cause of action. The Civil Court also granted the branches of defendant’s motion seeking summary judgment dismissing the third and fourth causes of action to the extent of dismissing so much of the third and fourth causes of action as sought to recover for services not billed under CPT Codes 97799 and 99203.

In support of its motion, defendant submitted affidavits by its employees which established that defendant had timely mailed the denial of claim forms at issue on this appeal (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Plaintiff argues that defendant failed to establish that its fee schedule reductions were proper. We disagree and find that, with respect to the services at issue, defendant demonstrated that it had fully paid plaintiff for the services in accordance with the workers’ compensation fee schedule for acupuncture services performed by chiropractors (see Great Wall Acupuncture, P.C. [*2]v Geico Ins. Co., 26 Misc 3d 23 [App Term, 2d, 11th & 13th Jud Dists 2009]). Consequently, the Civil Court properly granted the branches of defendant’s motion seeking summary judgment dismissing the first and second causes of action, and so much of the third and fourth causes of action as sought to recover for services not billed under CPT Codes 97799 and 99203.

In addition, upon a review of the record, we find that there is a triable issue of fact regarding the propriety of the address to which the IME scheduling letters were sent. As a result, defendant is not entitled to summary judgment dismissing the fifth and seventh causes of action (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Accordingly, the order, insofar as appealed from, is modified by providing that the branches of defendant’s motion seeking summary judgment dismissing the fifth and seventh causes of action are denied.

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

Decided on November 20, 2015

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

Decided on November 20, 2015

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

Decided on November 20, 2015

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

[*1]

Supreme Court, New York County, November 20, 2015

APPEARANCES OF COUNSEL

Thomas Torto, New York City, for plaintiffs.

Russell Friedman & Associates, LLP, Lake Success (Dara C. Goodman of counsel), for defendant.

This is a declaratory judgment action regarding no-fault insurance coverage. Defendant counterclaims for attorney’s fees and compensation for bills for the medical services that defendant allegedly provided to occupants of insured automobiles.

Defendant had previously moved for an order dismissing plaintiffs’ complaint for failure to state a cause of action, pursuant to CPLR 3211 (a) (7); or alternatively for an order dismissing plaintiffs’ complaint on the ground that plaintiffs lacked the capacity to file this action, pursuant to CPLR 3211 (a) (3). Defendant’s motion was denied, by this court’s October 17, 2012 decision and order, and separate opinion. Plaintiffs now move for summary judgment, pursuant to CPLR 3212, declaring that defendant is not entitled to no-fault benefits from plaintiffs with respect to the no-fault claims at issue in this action, and to dismiss defendant’s counterclaims; or alternatively, pursuant to CPLR 2201, to stay all American Arbitration Association (AAA) no-fault arbitration proceedings filed by defendant against plaintiffs to recover no-fault benefits for the no-fault claims at issue in the action, including a stay of enforcement and payment of previously issued AAA arbitration awards, pending determination of this declaratory judgment action.{**50 Misc 3d at 714}

Plaintiffs allege that defendant, as an assignee of first-party no-fault benefits, submitted to plaintiffs claims for defendant’s supposed treatment of “approximately” 31 people who sought medical treatment following motor vehicle accidents. Plaintiffs point out that in support of defendant’s claims it submitted medical reports with identical findings in relation to eight of the 31 patients, who were injured in different motor vehicle accidents. Plaintiffs also contend that defendant was engaging in a systematic upcoding of claims by using the same CPT codes, which are for the highest level of care on an initial examination, in relation to the treatment of minor soft tissue injuries.

Due to the suspicious nature of defendant’s claims, plaintiffs conducted an investigation, which revealed that Alexandre Scheer, M.D., defendant’s owner, was the subject of professional discipline by the New York State Office of Professional Medical Conduct (OPMC) for allegedly engaging in the fraudulent practice of medicine. Dr. Scheer had agreed to a consent order that he did not contest the charge and consented to a 60-month probation period during which he was allowed to practice medicine only with supervision. The consent order stated as a term of Dr. Scheer’s probation: “Respondent shall practice medicine only when monitored by a licensed physician, board certified in an appropriate specialty, (‘practice monitor’) proposed by Respondent and subject to the written approval of the Director of OPMC. Any medical practice in violation of this term shall constitute the unauthorized practice of medicine.”

With this information, plaintiffs requested that defendant submit to an examination under oath (EUO) to verify defendant’s claims. Dr. Scheer appeared at the EUO on behalf of defendant. Defendant’s counsel directed him at the EUO not to answer questions as to OPMC’s investigation of him and as to whether he complied with the probation condition of being supervised by an appropriate doctor while treating the no-fault claimants whose claims are at issue in this action. Defendant’s attorney asserted that issues relating to OPMC’s investigation, documents, proceedings, and the consent order were not proper subjects of the EUO because the investigation was about prior unrelated conduct by Dr. Scheer and was confidential. Furthermore, Dr. Scheer did not answer questions concerning the medical treatment rendered to a particular patient due to the claim having been denied by plaintiffs based on negative physical examinations.{**50 Misc 3d at 715}

Following the EUO, defendant’s claims were denied for the 31 patients on the grounds that defendant systematically upcoded its claims and that Dr. Scheer refused to answer pertinent questions at the EUO. Plaintiffs commenced this declaratory judgment action on August 26, 2011 for a declaration that defendant is not entitled to no-fault benefits for the approximately 31 claims.

On September 8, 2011, the National Insurance Crime Bureau (NICB) issued an alert advising that a priority one investigation was being conducted in relation to claims made by defendant. An indictment was filed on November 27, 2012 against Dr. Scheer and others for conspiracy to commit no-fault insurance fraud and mail fraud in a scheme to defraud insurers. Dr. Scheer entered into a deferred prosecution agreement with the United States Attorney for the Southern District of New York. Subsequently, a nolle prosequi was entered into by the U.S. Attorney and so ordered by the District Judge.

Commencing in 2012, defendant pursued some of its claims through arbitration before the AAA. Plaintiffs participated in the arbitrations before the AAA. In the arbitrations, the indictment was excluded or given no weight, as the indictment contained only allegations, and Dr. Scheer had not been convicted. Arbitration awards were issued in defendant’s favor. Plaintiffs brought “several” CPLR article 75 proceedings challenging the awards in the Civil Court of the City of New York, but the petitions were denied.^[FN*]

A party moving for summary judgment must demonstrate that there are no disputed issues of fact and that he, she, or it is entitled to judgment as a matter of law, pursuant to CPLR 3212 (b) (Smalls v AJI Indus., Inc., 10 NY3d 733, 735 [2008]; Pokoik v Pokoik, 115 AD3d 428 [1st Dept 2014]; see Gammons v City of New York, 24 NY3d 562, 569 [2014]). To defeat summary judgment, the party opposing the motion has to show{**50 Misc 3d at 716} that there is a material question(s) of fact that requires a trial (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; CitiFinancial Co. [DE] v McKinney, 27 AD3d 224, 226 [1st Dept 2006]; see Hoover v New Holland N. Am., Inc., 23 NY3d 41, 56 [2014]).

Plaintiffs contend that they are entitled to summary judgment on the grounds that defendant engaged in systemic upcoding and billed for unnecessary or nonexistent treatments, and that defendant refused to answer material questions at his EUO. Plaintiffs assert that the latter was a breach of the condition precedent in the insurance policies requiring cooperation at the EUO.

[1] Dr. Scheer’s failure to answer all relevant questions at the EUO, as required by the provisions of the applicable insurance policies, constitutes a material breach of contract, and precludes recovery by defendant. A condition precedent to coverage is cooperation in submitting to an EUO (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [1st Dept 2011]; Levy v Chubb Ins., 240 AD2d 336, 337 [1st Dept 1997]). The insurance policies and 11 NYCRR 65-3.5 (c) provide that plaintiffs, as insurers, may request that defendant, as a claimant, submit to an EUO, as a condition precedent to disbursement of benefits. Dr. Scheer stepped into the shoes of the insureds (cf. New York & Presbyt. Hosp. v Country-Wide Ins. Co., 17 NY3d 586, 592 [2011] [“as an assignee of all the rights, privileges and remedies to which (the patient) was entitled under the No-Fault Law, (the plaintiff) stood in the shoes of (the patient) and acquired no greater rights than he had”]). Dr. Scheer’s refusal to answer relevant questions in relation to the claims was not proper and led to an appropriate disclaimer of coverage by plaintiffs (see Latha Rest. Corp. v Tower Ins. Co., 38 AD3d 321, 322 [1st Dept 2007]).

[2] Plaintiffs’ inquiry at the EUO regarding Dr. Scheer’s medical license was permissible. As a professional service corporation, defendant was required to be owned and controlled by a licensed professional, who rendered the services provided by defendant (see One Beacon Ins. Group, LLC v Midland Med. Care, P.C., 54 AD3d 738, 740 [2d Dept 2008]). Although Dr. Scheer was entitled to confidentiality regarding the OPMC administrative proceeding itself (Public Health Law § 230; Anonymous v Bureau of Professional Med. Conduct/State Bd. for Professional Med. Conduct, 2 NY3d 663, 669-670 [2004]; Doe v Office of Professional Med. Conduct of N.Y. State Dept. of {**50 Misc 3d at 717} Health, 81 NY2d 1050, 1052 [1993]), the effect of the consent order on the manner in which Dr. Scheer was entitled to practice medicine was not confidential. With respect to questions about treatment, Dr. Scheer’s refusal to answer them resulted in obstructing plaintiffs from obtaining relevant information to evaluate the treatments rendered and the sums claimed.

In its first counterclaim, defendant seeks attorney’s fees. However, under the American rule as to attorney’s fees in litigation, even a prevailing party in an action generally may not recover his, her, or its attorney’s fees (see Mighty Midgets v Centennial Ins. Co., 47 NY2d 12, 21-22 [1979]). Although attorney’s fees can be recovered by an insured who defends against an insurer’s declaratory judgment action and prevails on the merits, defendant is not such a party here (see U.S. Underwriters Ins. Co. v City Club Hotel, LLC, 3 NY3d 592, 597-598 [2004]). With respect to defendant’s second counterclaim for recovery of bills, as defendant has not shown that it fully complied with plaintiffs’ material EUO inquiries, defendant is not entitled to payment of the claims.

Therefore, by separate decision and order, plaintiffs’ motion was granted to the extent of awarding plaintiffs summary judgment declaring that defendant is not entitled to no-fault benefits from plaintiffs with respect to the no-fault claims at issue in this action and dismissing defendant’s counterclaims. Thus, given that plaintiffs’ main request for relief has been granted, the request for alternative relief need not be decided.

Footnotes

Footnote *:The arbitration awards and court decisions may give res judicata and collateral estoppel effect (see Rembrandt Indus. v Hodges Intl., 38 NY2d 502, 504 [1976]; Feinberg v Boros, 99 AD3d 219, 226 [1st Dept 2012]; Kern v Excelsior 57th Corp., LLC, 77 AD3d 500, 501 [1st Dept 2010]; Acevedo v Holton, 239 AD2d 194, 195 [1st Dept 1997]). However, such defenses must be raised as affirmative defenses or by a motion under CPLR 3211 (a) (5), or the defenses are waived (see CPLR 3211 [e]; Mayers v D’Agostino, 58 NY2d 696, 698 [1982]). Defendant failed to do so (or even articulate “res judicata” or “collateral estoppel” in the papers in opposition to the motion). Furthermore, there are no arbitration awards or civil court decisions submitted as to the eight specifically named of the 31 patients. Thus, those affirmative defenses were waived.

Appeal from an order of the Civil Court of the City of New York, Kings County (Harriet L. Thompson, J.), entered April 12, 2013. The order, insofar as appealed from, granted the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the unpaid portions of claims for $2,015 and $985, and denied the branches of plaintiff’s cross motion seeking summary judgment upon that portion of the complaint.

ORDERED that the order, insofar as appealed from, is modified by providing that the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the unpaid portions of claims for $2,015 and $985 are 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 so much of an order of the Civil Court as granted the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the unpaid portions of claims for $2,015 and $985, and denied the branches of plaintiff’s cross motion seeking summary judgment upon that portion of the complaint.

A review of defendant’s letters reveals that they merely notified plaintiff that defendant was delaying payment, but they did not request any specific verification. As a result, these delay letters did not toll the statutory time period within which defendant was required to pay or deny the claims at issue (see Points of Health Acupuncture, P.C. v Lancer Ins. Co., 28 Misc 3d 133[A], 2010 NY Slip Op 51338[U] [App Term, 2d, 11th & 13th Jud Dists [2010]). Since defendant did not establish that it had otherwise tolled its time to pay or deny the claims, defendant failed to establish, as a matter of law, that it is not precluded from raising its proffered defense that the fees sought exceeded the amount permitted by the workers’ compensation fee schedule (see Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 282 [1997]). Consequently, the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the unpaid portions of claims for $2,015 and $985 should have been denied.

Plaintiff’s cross motion failed to establish either that defendant had failed to pay or deny the claims seeking to recover the unpaid portions of the claims for $2,015 and $985 within the [*2]requisite 30-day period (see Insurance Law § 5106 [a]; Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant had issued timely denials of claim 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, 11th & 13th Jud Dists 2011]). As a result, plaintiff failed to demonstrate its prima facie entitlement to summary judgment upon this portion of the complaint.

Accordingly, the order, insofar as appealed from, is modified by providing that the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the unpaid portions of claims for $2,015 and $985 are denied.

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Pamela L. Fisher, J.), entered February 4, 2013. The order, insofar as appealed from, denied the branches of plaintiff’s motion seeking summary judgment upon the first and the third through sixth causes of action, granted the branches of defendant’s cross motion seeking summary judgment dismissing the first and third causes of action, and held that the sole issue for trial was the mailing of the claim forms underlying the fourth through sixth causes of action.

ORDERED that the order, insofar as appealed from, is modified by providing that the branches of defendant’s cross motion seeking summary judgment dismissing the first and third causes of action are denied; as so modified, the order, insofar as appealed from, 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. Insofar as is relevant to this appeal, by order entered February 4, 2013, the Civil Court denied the branches of plaintiff’s motion seeking summary judgment upon the first and the third through sixth causes of action, granted the branches of defendant’s cross motion seeking summary judgment dismissing the first and third causes of action, and held that the sole issue for trial was the mailing of the claim forms underlying the fourth through sixth causes of action.

The affidavit by defendant’s claims representative was sufficient to establish that defendant did not receive the claim forms underlying plaintiff’s fourth through sixth causes of action. However, since the affidavit from plaintiff’s owner demonstrated that the claim forms had been mailed to defendant, there is an issue of fact as to whether defendant’s time to pay or deny these claim ever began to run (see Compas Med., P.C. v 21st Century Ins. Co., 47 Misc 3d 128[A], 2015 NY Slip Op 50388[U] [App Term, 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, 11th & 13th Jud Dists 2014]; 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, 11th & 13th Jud Dists 2013]). As a result, contrary to plaintiff’s contention, plaintiff is not entitled to summary judgment on its fourth through sixth causes of action.

With respect to the branches of defendant’s cross motion seeking summary judgment dismissing plaintiff’s first and third causes of action, defendant failed to submit proof by [*2]someone with personal knowledge of the nonappearance of plaintiff’s assignor for the examination under oath which was to occur on March 23, 2011. As a result, defendant is not entitled to summary judgment dismissing plaintiff’s first and third causes of action (see Alrof, Inc. v Safeco Natl. Ins. Co., 39 Misc 3d 130[A], 2013 NY Slip Op 50458[U] [App Term, 2d, 11th & 13th Jud Dists 2013]; Bright Med. Supply Co. v IDS Prop. & Cas. Ins. Co., 40 Misc 3d 130[A], 2013 NY Slip Op 51123[U] [App Term, 2d, 11th & 13th Jud Dists 2013]).

Contrary to plaintiff’s contention, the branches of plaintiff’s motion seeking summary judgment upon the first and third causes of action were properly denied, as plaintiff’s moving papers failed to establish either that defendant had failed to pay or deny the claims within the requisite 30-day period (see Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d 33 [2013], affd 25 NY3d 498 [2015]), or that defendant had issued timely denials of claim 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, 11th & 13th Jud Dists 2011]).

Accordingly, the order, insofar as appealed from, is modified by providing that the branches of defendant’s cross motion seeking summary judgment dismissing the first and third causes of action are denied.

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

Appeal from an order of the Civil Court of the City of New York, Queens County (Larry Love, J.), entered April 16, 2013. The order denied plaintiff’s motion for summary judgment and granted the branch of defendant’s cross motion seeking summary judgment dismissing the complaint on the ground of fraudulent procurement of the insurance policy.

ORDERED that the order is modified by providing that the branch of defendant’s cross 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 cross motion seeking summary judgment dismissing the complaint on the ground that the amount sought to be recovered exceeded the amount permitted by the workers’ compensation fee schedule.

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 on the ground that plaintiff’s assignor had fraudulently procured the insurance policy by misrepresenting, among other things, whether he would be using the vehicle being insured for work, and on the alternate ground that the amount sought to be recovered exceeded the amount permitted by the workers’ compensation fee schedule. By order entered April 16, 2013, the Civil Court denied plaintiff’s motion and granted the branch of defendant’s cross motion seeking summary judgment dismissing the complaint on the ground that defendant had established its defense of fraudulent procurement of the insurance policy. The April 16, 2013 order did not pass upon the branch of defendant’s cross motion seeking summary judgment dismissing the complaint on the alternate ground that the amount sought to be recovered exceeded the amount permitted by the workers’ compensation fee schedule.

Defendant demonstrated that the assignor, who was also the insured under the insurance policy in question, had misrepresented, among other things, his use of the subject vehicle when he had submitted his application for insurance to defendant. However, defendant failed to submit sufficient evidence to establish that this misrepresentation was material (cf. New Millennium Psychological Servs., P.C. v Commerce Ins. Co., 34 Misc 3d 127[A], 2011 NY Slip Op 52286[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). Consequently, the branch of defendant’s cross motion seeking summary judgment dismissing the [*2]complaint due to plaintiff’s assignor’s fraudulent procurement of the insurance policy should have been denied.

Plaintiff’s contention that its motion for summary judgment should have been granted lacks merit inasmuch as plaintiff failed to establish its prima facie case since it did not establish either that defendant had failed to deny the claim within the requisite 30-day period (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 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, 11th & 13th Jud Dists 2011]).

Accordingly, the order is modified by providing that the branch of defendant’s cross 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 cross motion seeking summary judgment dismissing the complaint on the ground that the amount sought to be recovered exceeded the amount permitted by the workers’ compensation fee schedule.

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

Appeal from an order of the Civil Court of the City of New York, Queens County (Jodi Orlow, J.), entered March 19, 2013. The order, insofar as appealed from, denied the branches of plaintiff’s motion seeking summary judgment upon the first through sixth causes of action and granted the branches of defendant’s cross motion seeking summary judgment dismissing these causes of action.

ORDERED that the order, insofar as appealed from, is modified by providing that the branch of defendant’s cross motion seeking summary judgment dismissing the first cause of action is denied; as so modified, the order, insofar as appealed from, 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. By order entered March 19, 2013, insofar as appealed from, the Civil Court denied the branches of plaintiff’s motion seeking summary judgment upon the first through sixth causes of action, granted the branch of defendant’s cross motion seeking summary judgment dismissing the first cause of action as premature because plaintiff had failed to provide requested verification, and granted the branches of defendant’s cross motion seeking summary judgment dismissing the second through sixth causes of action due to the failure of plaintiff’s assignor to appear for independent medical examinations (IMEs) and examinations under oath (EUOs).

In support of the branch of defendant’s cross motion seeking summary judgment dismissing the first cause of action, defendant submitted an affidavit by its claims examiner which established that defendant had timely mailed its verification request and follow-up verification request (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Defendant also demonstrated prima facie that it had not received the requested verification and, thus, that plaintiff’s first cause of action is premature (see 11 NYCRR 65-3.8 [a]; Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]). However, in opposition to the cross motion, plaintiff submitted an affidavit from plaintiff’s owner, which affidavit was sufficient to give rise to a presumption that the requested verification had been mailed to, and received by, defendant (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). In light of the foregoing, there is a triable issue of fact as to whether this cause of action is premature (see Healing Health Prods., Inc. v New York Cent. Mut. Fire Ins. Co., 44 Misc 3d 59 [App Term, 2d, 11th & 13th Jud Dists 2014]).

Contrary to plaintiff’s contention, defendant established that the IME and EUO scheduling letters had been timely mailed (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123), 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 second through sixth causes of action on that ground. 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, defendant was entitled to summary judgment dismissing these causes of action.

Accordingly, the order, insofar as appealed from, is modified by providing that the branch of defendant’s cross motion seeking summary judgment dismissing plaintiff’s first cause of action is denied.

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

Decided on November 19, 2015

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