Decided on June 22, 2016

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 (Larry Love, J.), entered October 2, 2014. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that defendant’s cross 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 moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. With respect to the first through third causes of action, defendant contended that it had timely denied the claims based on plaintiff’s assignor’s fraudulent procurement of the insurance policy, in that plaintiff’s assignor had materially misrepresented his address in order to procure a lower insurance premium. Defendant further contended that the remaining claims (the fourth through sixth causes of action) were premature, as there were outstanding verification requests. By order entered October 2, 2014, the Civil Court denied plaintiff’s motion and granted defendant’s cross motion.

Plaintiff’s motion was properly denied, as plaintiff did not demonstrate either that defendant had failed to deny the claims at issue 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 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 Dept, 2d, 11th & 13th Jud Dists 2011]).

Defendant’s cross motion should also have been denied. With respect to the first through third causes of action, defendant failed to establish that it had timely mailed letters scheduling plaintiff’s assignor’s examination under oath (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]); therefore, defendant failed to demonstrate, as a matter of law, that it had tolled its time to deny those claims on the proffered ground of fraudulent procurement of the insurance policy (see Great Health Care Chiropractic, P.C. v Hanover Ins. Co., 42 Misc 3d 147[A], 2014 NY Slip Op 50359[U] [App Term, 2d Dept, 2d, 11th & 13th Jud [*2]Dists 2014]). Moreover, defendant failed to establish as a matter of law that the misrepresentation by plaintiff’s assignor as to his place of residence was material (see Interboro Ins. Co. v Fatmir, 89 AD3d 993 [2011]). For the foregoing reasons, the branches of defendant’s cross motion seeking summary judgment dismissing the first through third causes of action should have been denied.

With respect to the fourth through sixth causes of action, defendant’s claims examiner submitted an affidavit establishing the timely mailing of its verification requests and its follow-up verification requests (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Pomona Med. Diagnostics, P.C. v Travelers Ins. Co., 31 Misc 3d 127[A], 2011 NY Slip Op 50447[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]). Defendant also demonstrated prima facie that the requested verification information had not been received (see 11 NYCRR 65-3.8 [a]; Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]). However, in response to the cross motion, plaintiff’s owner submitted an affidavit which was sufficient to give rise to a presumption that the requested verification had been mailed to and received by defendant (see Compas Med., P.C. v Praetorian Ins. Co., 49 Misc 3d 152[A], 2015 NY Slip Op 51776[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Thus, a triable issue of fact exists as to whether causes of action four through six are premature (see id.).

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

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Devin P. Cohen, J.), entered August 8, 2014. The order, insofar as appealed from as limited by the brief, granted defendant’s motion for summary judgment dismissing the complaint and denied the branches of plaintiff’s cross motion seeking summary judgment or, in the alternative, to strike defendant’s answer and affirmative defenses, and to compel defendant to respond to discovery demands.

ORDERED that the order, insofar as appealed from, is affirmed, with $25 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 had failed to appear for duly scheduled examinations under oath (EUOs). Insofar as is relevant to this appeal, plaintiff cross-moved for summary judgment or, in the alternative, to strike defendant’s answer and affirmative defenses, and to compel defendant to respond to discovery demands. As limited by its brief, plaintiff appeals from so much of an order of the Civil Court as granted defendant’s motion and denied the aforementioned branches of plaintiff’s cross motion.

Contrary to plaintiff’s argument on appeal, defendant sufficiently established plaintiff’s failure to appear for the two duly scheduled EUOs (see e.g. T & J Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co., 47 Misc 3d 130[A], 2015 NY Slip Op 50406[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; Natural Therapy Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 44 Misc 3d 141[A], 2014 NY Slip Op 51310[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]).

Plaintiff failed to raise an issue of fact as to whether it had timely responded in any way to the EUO requests at issue. While plaintiff attached one letter allegedly objecting to the EUO in question, plaintiff did not allege, much less prove, that it had actually sent the letter. In any event, the letter is dated, and marked as sent on, June 3, 2011, two days after plaintiff’s second failure to appear for an EUO in this case. As plaintiff failed to timely object to the EUO requests in claims processing, it may not raise any objection to the reasonableness of those requests in litigation (see e.g. T & J Chiropractic, P.C., 47 Misc 3d 130[A], 2015 NY Slip Op 50406[U]; Metro Health Prods., Inc. v State Farm Mut. Auto. Ins. Co., 47 Misc 3d 127[A], 2015 NY Slip Op 50402[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]), and any discovery [*2]relevant to the reasonableness of the EUO requests was not necessary for plaintiff to oppose defendant’s motion (see CPLR 3212 [f]; Interboro Ins. Co. v Clennon, 113 AD3d 596 [2014]; Palafox PT, P.C. v State Farm Mut. Auto. Ins. Co., 49 Misc 3d 144[A], 2015 NY Slip Op 51653[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; T & J Chiropractic, P.C., 47 Misc 3d 130[A], 2015 NY Slip Op 50406[U]; Metro Health Prods., Inc., 47 Misc 3d 127[A], 2015 NY Slip Op 50402[U]). Consequently, contrary to plaintiff’s further argument on appeal, there was no outstanding discovery warranting the denial of defendant’s motion pursuant to CPLR 3212 (f).

The issues raised in plaintiff’s remaining arguments are moot and/or lack merit.

Accordingly, the order, insofar as appealed from, is affirmed.

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

Decided on June 20, 2016

Appeal from an order of the Civil Court of the City of New York, Kings County (Harriet L. Thompson, J.), entered October 25, 2013. The order denied plaintiff’s motion to vacate a prior order of the same court (Carolyn E. Wade, J.) entered May 18, 2012, which granted, on default, defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with $25 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 of lack of medical necessity. Thereafter, the parties entered into a two-attorney stipulation which provided a schedule for serving opposition papers, any cross motion and reply papers. Although the stipulation required that plaintiff’s opposition was to be served on or before March 18, 2012, plaintiff served its opposition papers on March 29, 2012. By order entered May 18, 2012, the Civil Court (Carolyn E. Wade, J.) granted, on default, defendant’s motion for summary judgment, declining to consider plaintiff’s late opposition to the motion. On March 22, 2013, plaintiff moved for an order, pursuant to CPLR 5015, vacating the order entered May 18, 2012. Plaintiff appeals from an order of the Civil Court (Harriet L. Thompson, J.) entered October 25, 2013, which denied its unopposed motion.

To vacate the order granting, on default, defendant’s motion for summary judgment, plaintiff was required to demonstrate both a reasonable excuse for the default and a potentially meritorious opposition to the motion (see CPLR 5015 [a] [1]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]). In an affirmation in support of plaintiff’s motion to vacate the default order, plaintiff’s attorney stated that the affirmation of medical necessity from its expert, who was not the treating doctor, did not become “available” until shortly after the date that plaintiff’s opposition papers were due. Upon the record presented, we find that the explanation proffered by plaintiff’s attorney was insufficient to establish a reasonable excusable for plaintiff’s failure to timely oppose defendant’s summary judgment motion (see Starakis v Baker, 121 AD3d 669 [2014]; Dokaj v Ruxton Tower Ltd. Partnership, 91 AD3d 812 [2012]). Moreover, plaintiff’s attorney offered no reason for waiting 10 months before moving to vacate the default order (see Byers v Winthrop Univ. Hosp., 100 AD3d 817 [2012]; A.B. Med, PLLC v CNA Ins. Co., 46 Misc 3d 144[A], 2015 NY Slip Op 50199[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). In view of the lack of an excusable default, it is unnecessary to consider [*2]whether plaintiff sufficiently demonstrated the existence of a potentially meritorious opposition to defendant’s motion for summary judgment (see KI 12, LLC v Joseph, 137 AD3d 750 [2016]; BAC Home Loans Servicing, LP v Reardon, 132 AD3d 790 [2012]).

Accordingly, the order is affirmed.

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

Decided on June 15, 2016

Plaintiff appeals from an order the Civil Court of the City of New York, New York County (James E. d’Auguste, J.), entered April 23, 2014, which granted defendant’s motion for summary judgment dismissing the complaint.

Per Curiam.

Order (James E. d’Auguste, J.), entered April 23, 2014, affirmed, with $10 costs.

The defendant-insurer made a prima facie showing of entitlement to summary judgment dismissing the action for first-party no-fault benefits by establishing that it timely and properly mailed the notices for examinations under oath [EUOs] to plaintiff’s assignor and his attorney, and that the assignor failed to appear at the initial EUO and the June 20, 2011 rescheduled follow-up EUO (see Allstate Ins. Co. v Pierre, 123 AD3d 618 [2014]; see also Hertz Corp. v Active Care Med. Supply Corp., 124 AD3d 411 [2015]). Contrary to plaintiff’s contention, defendant submitted competent evidence of the assignor’s nonappearance in the form of the affirmation of defendant’s attorney who was assigned to the file and the affidavit of defendant’s employee who was responsible for the scheduling of the EUOs, setting forth sufficient facts to demonstrate the affiants’ personal knowledge of the assignor’s repeated failures to appear for the EUOs and the office practices and policies when an assignor fails to appear for a scheduled IME (see Hertz Corp. v Active Care Med. Supply Corp., 124 AD3d at 411; American Tr. Ins. Co. v Lucas, 111 AD3d 423 [2013]).

In opposition to defendant’s prima facie showing, plaintiff did not specifically deny the assignor’s nonappearance at the scheduled EUOs, or otherwise raise a triable issue with respect thereto, or as to the mailing or reasonableness of the underlying notices (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [2011], lv denied 17 NY3d 705[2011]).

Plaintiff’s remaining contentions are either without merit or, where plaintiff failed to articulate any specific arguments in its appellate brief, abandoned on appeal (see Mendoza v Akerman Senterfitt LLP, 128 AD3d 480, 483 [2015]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Decided on June 6, 2016

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 (Larry Love, J.), entered October 3, 2013. The order granted defendant’s motion for summary judgment dismissing the complaint.

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

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint. The Civil Court found that defendant had timely and properly denied the claims at issue on the ground that plaintiff had failed to comply with a condition precedent to coverage, in that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs). On appeal, plaintiff argues that defendant failed to prove that it had mailed its EUO scheduling letters and denial of claim forms, or that plaintiff had failed to appear for the EUOs; that defendant lacked justification for its EUO requests; that defendant’s motion should have been denied pursuant to CPLR 3212 (f), as plaintiff had not received discovery regarding the reasonableness of defendant’s EUO requests; and that defendant failed to prove that plaintiff had willfully obstructed defendant’s investigation.

Contrary to plaintiff’s arguments, 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 v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). In addition, the affirmation submitted by defendant’s attorney, who was present in his office to conduct the EUO of plaintiff on the scheduled dates, was sufficient to establish that plaintiff had failed to appear.

With respect to plaintiff’s contention that defendant failed to demonstrate justification for its EUO requests, in a similar case involving the failure of a provider’s assignor to appear for EUOs, the Appellate Division, Second Department, has held that, to establish its prima facie entitlement to summary judgment dismissing the complaint on the ground that a provider’s assignor failed to appear for an EUO, an insurer need only establish “as a matter of law that it twice duly demanded an [EUO] from the [provider’s] assignor, who had allegedly been injured in a motor vehicle accident, that the assignor twice failed to appear, and that the [insurer] issued a [*2]timely denial of the claims arising from the [provider’s] treatment of the assignor” (Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2014]). A review of the record in Interboro Ins. Co. v Clennon reveals that, in that case, the provider argued, as does plaintiff herein, that the insurer’s motion should have been denied pursuant to CPLR 3212 (f), as the provider had not received discovery regarding the reasonableness of defendant’s EUO requests, and that, even if there had been a failure to appear for two duly scheduled EUOs, the insurer had to show that the failure to appear constituted willful obstruction of the insurer’s investigation. In finding for the insurer, the Appellate Division, Second Department, stated the following:

“the [providers] failed to establish that summary judgment was premature in light of outstanding discovery. A party who contends that a summary judgment motion is premature is required to demonstrate that discovery might lead to relevant evidence or [that] the facts essential to justify opposition to the motion were exclusively within the knowledge and control of the movant’ (Cajas-Romero v Ward, 106 AD3d 850, 852 [2013]; see CPLR 3212 [f]). Here, in support of their contention that the [insurer’s] motion was premature, the [providers] did not establish what information they hoped to discover that would demonstrate the existence of a triable issue of fact” (113 AD3d at 597).

Similarly, in the instant case, plaintiff “did not establish what information [it] hoped to discover that would demonstrate the existence of a triable issue of fact” (id.; cf. American Tr. Ins. Co. v Jaga Med. Servs., P.C., 128 AD3d 441 [2015]).

Accordingly, the order is affirmed.

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

Decided on June 6, 2016

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