One RX Chemist, Inc. v Nationwide Mut. Ins. Co. (2026 NY Slip Op 51309(U))

Reported in New York Official Reports at One RX Chemist, Inc. v Nationwide Mut. Ins. Co. (2026 NY Slip Op 51309(U))

Supreme Court, Appellate Term, Second Department, 2d, 11th And 13th Judicial Districts

Decided on June 17, 2026

2025-1324 Q C

Present: : Wavny Toussaint, P.J., Chereé A. Buggs, Joanne D. Quiñones, JJ

Hollander Legal Group, P.C. (Allan S. Hollander and Christopher Volpe of counsel), for appellant. Law Offices of Gabriel & Moroff, P.C. (Jay Koo and Koenig Pierre of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County, (Sandra Perez, J.), dated February 27, 2025. 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 (Sandra Perez, J.) as denied defendant’s motion which had sought summary judgment dismissing the complaint on the ground that plaintiff failed to appear for duly scheduled examinations under oath (EUOs).

Here, it is undisputed that defendant established, prima facie, that it timely mailed its initial and follow-up EUO scheduling letters (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]), that plaintiff failed to appear for the EUOs scheduled for December 17, 2021, January 14, 2022, and February 4, 2022, and that, after plaintiff failed to [*2]appear for the last scheduled EUO, defendant timely denied the subject claim on the ground that plaintiff had failed to appear for those EUOs. The Civil Court erred in denying defendant’s motion on the ground that an issue of fact exists as to the reasonableness of the EUO request (see Interboro Ins. Co. v Clennon, 113 AD3d 596 [2014]; MUA Chiropractic Healthcare, PLLC v Nationwide Mut. Ins. Co., 77 Misc 3d 140[A], 2022 NY Slip Op 51384[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]; see also 21st Century Pharm., Inc. v Ameriprise Ins. Co., 65 Misc 3d 134[A], 2019 NY Slip Op 51629[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; Parisien v Metlife Auto & Home, 54 Misc 3d 143[A], 2017 NY Slip Op 50208[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]). In any event, we note that the EUO scheduling letters and response letter provided plaintiff with the basis for the EUO request. As plaintiff failed to raise a triable issue of fact in response to defendant’s prima facie showing, defendant is entitled to summary judgment dismissing the complaint (see First Class Med., P.C. v Ameriprise Ins. Co., 63 Misc 3d 135[A], 2019 NY Slip Op 50477[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2019]; ARCO Med. NY, 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]).

Accordingly, the order, insofar as appealed from, is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.

TOUSSAINT, P.J., BUGGS and QUIÑONES, JJ., concur.

ENTER:

Jennifer Chan

Chief Clerk

Decision Date: June 17, 2026