[*1]

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

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

Order, Supreme Court, Bronx County (Alison Y. Tuitt, J.), entered July 18, 2013, which granted plaintiff insurer’s motion for summary judgment declaring that defendants-appellants are not entitled to no-fault benefits, unanimously modified, on the law, solely to declare that defendants-appellants are not entitled to no-fault benefits, and otherwise affirmed, without costs.

Plaintiff established that defendants are not entitled to no-fault benefits because their assignors failed to appear at scheduled examinations under oath (EUOs). This Court in Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC (82 AD3d 559 [1st Dept 2011], lv denied 17 NY3d 705 [2011]) held that the failure to submit to requested independent medical examinations (IMEs) constitutes a breach of a condition precedent to coverage under a no-fault policy and voids coverage regardless of the timeliness of the denial of coverage (id. at 560). Although the instant case involves the failure to appear at EUOs, and not IMEs, this Court’s holding in Unitrin applies to EUOs (see e.g. Interboro Ins. Co. v Perez, 112 AD3d 483, 483 [1st Dept 2013]; Seacoast Med., P.C. v Praetorian Ins. Co., 38 Misc 3d 127[A], 2012 NY Slip Op 52354[U] [App Term, 1st Dept 2012]; Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2d Dept 2014]). Defendants do not dispute that their assignors failed to appear at their first EUOs, and plaintiff established, through admissible evidence, that the assignors failed to appear at their second EUOs (see Arco Med. NY, P.C. v Metropolitan Cas. Ins. Co., 41 Misc 3d 140[A], 2013 NY Slip Op 52001[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; Quality Psychological Servs., P.C. v Interboro Mut. Indem. Ins. Co., 36 Misc 3d 146[A], 2012 NY Slip Op 51628[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]). Plaintiff also established that the statements on the record were business records (see e.g. People v Cratsley, 86 NY2d 81, 90-91 [1995]; One Step Up, Ltd. v Webster Bus. Credit Corp., 87 AD3d 1, 11-12 [1st Dept 2011]). Although plaintiff was required to show (and did show) that the assignors each failed to appeared at two EUOs (see DVS Chiropractic, P.C. v Interboro Ins. Co., 36 Misc 3d 138[A], 2012 NY Slip Op 51443[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]), plaintiff was not required to demonstrate that the assignors’ nonappearances were willful (see Unitrin, 82 AD3d at 561).

[*2] Defendants’ argument that plaintiff failed to establish that it had mailed the EUO notices to the assignors’ correct addresses is unpreserved (see e.g. Ta-Chotani v Doubleclick, Inc., 276 AD2d 313, 313 [1st Dept 2000]) and unavailing (see American Tr. Ins. Co. v Leon, 112 AD3d 441, 442 [1st Dept 2013]). Similarly, their argument that plaintiff waived the defense of the assignors’ nonappearance because plaintiff did not establish that it ever denied defendants’ claims is unpreserved (see 276 AD2d at 313). In any event, the argument is unavailing, as defendants’ own verified answer alleged that plaintiff had denied their claims.

Defendants failed to show that summary judgment is premature due to outstanding discovery (see Interboro, 113 AD3d at 597).

We modify the court’s order solely to make a declaration in plaintiff’s favor (see Maurizzio v Lumbermens Mut. Cas. Co., 73 NY2d 951, 954 [1989]; see also QBE Ins. Corp. v Jinx-Proof Inc., 102 AD3d 508, 510 [1st Dept 2013]).

We have considered defendants’ remaining arguments and find them unavailing. Concur—Tom, J.P., Friedman, Renwick, Manzanet-Daniels and Kapnick, JJ.

Decided on December 22, 2014

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

Decided on December 19, 2014

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

Decided on December 19, 2014

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

Appeal from an order of the Civil Court of the City of New York, Queens County (Joseph E. Capella, J.), entered May 15, 2012, deemed from a judgment of the same court entered June 13, 2012 (see CPLR 5501 [c]). The judgment, entered pursuant to the May 15, 2012 order granting the branches of plaintiff’s cross motion seeking summary judgment upon the first, second and third causes of action and denying the branches of defendant’s motion seeking summary judgment dismissing those causes of action, awarded plaintiff the principal sum of $2,958.

ORDERED that the judgment is reversed, with $30 costs, so much of the order entered May 15, 2012 as granted the branches of plaintiff’s cross motion seeking summary judgment upon the first, second and third causes of action and denied the branches of defendant’s motion seeking summary judgment dismissing those causes of action is vacated, the branches of plaintiff’s cross motion seeking summary judgment upon the first, second and third causes of action are denied, and the branches of defendant’s motion seeking summary judgment dismissing those causes of action are granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order of the Civil Court as granted the branches of plaintiff’s cross motion seeking summary judgment upon the first, second and third causes of action and denied the branches of defendant’s motion seeking summary judgment dismissing those causes of action. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see [*2]CPLR 5501 [c]).

The branches of defendant’s motion seeking summary judgment dismissing plaintiff’s second and third causes of action, were supported by an affidavit executed by defendant’s litigation examiner which sufficiently described defendant’s standard mailing practices and procedures so as to establish the timely mailing of defendant’s request for additional verification (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). In addition, the affidavit demonstrated that, after defendant had received the requested additional verification, defendant had timely denied the claims (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16) on the ground that plaintiff had failed to appear for duly scheduled independent medical examinations (IMEs). Defendant submitted an affidavit by an employee of the company which had been retained by defendant to schedule IMEs, which affidavit established that the scheduling letters had been timely mailed in accordance with that office’s standard mailing practices and procedures (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16). Defendant also submitted affidavits by the healthcare professionals who were to perform the IMEs, which affidavits established that plaintiff’s assignor had failed to appear for the duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Since defendant demonstrated that plaintiff had failed to comply with a condition precedent to coverage, the branches of defendant’s motion seeking summary judgment dismissing plaintiff’s second and third causes of action should have been granted.

With respect to plaintiff’s first cause of action, the affidavit of defendant’s litigation examiner established that defendant had timely mailed verification requests and follow-up verification requests (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16). Defendant also demonstrated that it had not received all of the verification requested, and plaintiff did not show that such verification had been provided to defendant prior to the commencement of this action. Consequently, the 30-day period within which defendant was required to pay or deny the claim did not begin to run (see 11 NYCRR 65-3.8 [a]; Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]; Hospital for Joint Diseases v State Farm Mut. Auto. Ins. Co., 8 AD3d 533 [2004]; D & R Med. Supply v. American Tr. Ins. Co., 32 Misc 3d 144[A], 2011 NY Slip Op 51727[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; Doshi Diagnostic Imaging Servs. v State Farm Ins. Co., 16 Misc 3d 42 [App Term, 2d & 11th Jud Dists 2007]), and, thus, plaintiff’s first cause of action is premature. As a result, the branch of defendant’s motion seeking summary judgment dismissing plaintiff’s first cause of action should also have been granted.

Accordingly, the judgment is reversed, so much of the order entered May 15, 2012 as granted the branches of plaintiff’s cross motion seeking summary judgment upon the first, second and third causes of action and denied the branch of defendant’s motion seeking summary judgment dismissing those causes of action is vacated, the branches of plaintiff’s cross motion seeking summary judgment upon the first, second, and third causes of action are denied and the branches of defendant’s motion seeking summary judgment dismissing those causes of action are granted.

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Genine D. Edwards, J.), entered April 18, 2012. The order, insofar as appealed from, denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, with $30 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 appeals from so much of an order of the Civil Court as denied defendant’s motion for summary judgment dismissing the complaint.

An affidavit submitted by defendant’s no-fault claims examiner established that, with respect to two bills for services rendered on December 22, 2009, a bill for services rendered on December 23, 2009, and a bill for $340 for services rendered from January 15, 2010 to January 21, 2010, defendant had timely mailed verification requests and follow-up verification requests (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th [*2]Jud Dists 2007]). Defendant demonstrated that it had not received the verification requested, and plaintiff did not show that such verification had been provided to defendant. Consequently, the 30-day period within which defendant was required to pay or deny those claims did not begin to run (see 11 NYCRR 65-3.8 [a]; Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]), and so much of the complaint as sought to recover upon those claims should have been dismissed as premature.

With respect to the remaining claims at issue, defendant submitted an affidavit by an employee of the company which had been retained by defendant to schedule independent medical examinations (IMEs), which affidavit established that the scheduling letters had been timely mailed in accordance with that office’s standard mailing practices and procedures (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16). Defendant also submitted affidavits by the healthcare professionals who were to perform the IMEs, which affidavits established that plaintiff’s assignor had failed to appear for the duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). An affidavit executed by defendant’s litigation examiner sufficiently described the standard mailing practices and procedures to establish the timely mailing of the denial of claim forms (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16). Since an assignor’s appearance at an IME is a condition precedent to the insurer’s liability on the policy (see Stephen Fogel Psychological, P.C., 35 AD3d at 722), the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the remaining claims 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.

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

Decided on December 19, 2014

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

Decided on December 19, 2014

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

Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered September 13, 2012. The order, insofar as appealed from, upon denying plaintiff’s motion for summary judgment, made, in effect, CPLR 3212 (g) findings in plaintiff’s favor, and denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, the CPLR 3212 (g) findings in favor of plaintiff are vacated, and defendant’s cross motion for summary judgment dismissing the complaint is granted.

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 the action was premature because defendant had timely and properly requested verification and plaintiff had not responded. Insofar as is relevant to this appeal, the Civil Court, upon denying plaintiff’s motion, made, in effect, CPLR 3212 (g) findings in plaintiff’s favor, denied defendant’s cross motion, and held that the only remaining issue for trial was whether plaintiff had responded to defendant’s verification requests.

As defendant demonstrated that it had not received the verification requested, and plaintiff did not show that such verification had been provided to defendant prior to the commencement of the action, the 30-day period within which defendant was required to pay or deny the claims did not begin to run (see 11 NYCRR 65-3.8 [a]; Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]; Hospital for Joint Diseases v State Farm Mut. Auto. Ins. Co., 8 AD3d 533 [2004]; D & R Med. Supply v American Tr. Ins. Co., 32 Misc 3d 144[A], 2011 NY Slip Op 51727[U] [App Term, 2d, 11th & 13th Jud Dists 2011]) and, thus, plaintiff’s action is premature.

In view of the foregoing, and as plaintiff has not challenged the Civil Court’s finding, in effect, that defendant is otherwise entitled to judgment, the order, insofar as appealed from, is reversed, and defendant’s cross motion for summary judgment dismissing the complaint is granted.

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

Decided on December 17, 2014

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