Avicenna Med. Arts, PLLC v Unitrin Advantage Ins. Co. (2015 NY Slip Op 50382(U))

Appeal from an order of the Civil Court of the City of New York, Queens County (Barry A. Schwartz, J.), entered August 16, 2012. The order, insofar as appealed from as limited by the brief, granted the branches of plaintiff’s motion seeking summary judgment on plaintiff’s first six causes of action. The appeal from the order is deemed to be from a judgment of the same court entered October 17, 2012 awarding plaintiff the principal sum of $2,903 (see CPLR 5501 [c]).

ORDERED that the judgment is affirmed, with $25 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 on the ground that the bills at issue had been timely and properly denied based on plaintiff’s assignor’s failure to appear for scheduled examinations under oath (EUOs). Insofar as is relevant to this appeal, by order entered August 16, 2012, the Civil Court granted the branches of plaintiff’s motion seeking summary judgment on plaintiff’s first six causes of action. A judgment was subsequently entered awarding plaintiff the principal sum of $2,903.

Defendant correctly argues on appeal that plaintiff did not demonstrate its prima facie entitlement to summary judgment, as it failed to establish either that defendant had failed to pay or deny the claim within the requisite 30-day period (see Insurance Law § 5106 [a]; Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d 33 [2013]), 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]). However, as the Civil Court found, the papers submitted in support of defendant’s cross motion demonstrated that defendant’s follow-up EUO requests were untimely (see 11 NYCRR 65-3.6 [b]; Concourse Chiropractic, PLLC v Fiduciary Ins. Co. of Am., 35 Misc 3d 146[A], 2012 NY Slip Op 51058[U] [App Term, 2d, 11th & 13th Jud Dists 2012]). As the claims at issue were not denied within 30 days of their receipt (see 11 NYCRR 65-3.8 [a] [1]), defendant is precluded from asserting its defense that there had been a failure to appear for EUOs as to those claims (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2009]), and, thus, plaintiff was properly granted judgment on its first six causes of action.

Accordingly, the judgment is affirmed.

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