Bruno, Gerbino & Soriano, LLP (Nathan Shapiro of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Louis L. Nock, J.), entered September 11, 2017. The order, insofar as appealed from, denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant’s cross motion for summary judgment 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 cross motion which had sought summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for duly scheduled examinations under oath (EUOs).

In its cross motion, defendant established that initial and follow-up letters scheduling an EUO had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]); that plaintiff’s assignor had failed to appear on either date (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]); and that the claims had been timely denied on that ground (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123). As plaintiff failed to raise a triable issue of fact in opposition to defendant’s cross motion, the cross motion should have been granted.

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

PESCE, P.J., ALIOTTA and SIEGAL, JJ., concur.

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Law Office of Daniel J. Tucker (Joshua M. Goldberg of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Mary V. Rosado, J.), entered September 5, 2017. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

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 on the ground that plaintiff had failed to appear for duly scheduled examinations under oath, and denied plaintiff’s cross motion for summary judgment.

For the reasons stated in Allay Med. Servs., P.C., as Assignee of Mills, Keith A. v Metropolitan Gen. Ins. Co. (___ Misc 3d ___, 2019 NY Slip Op _____ [appeal No. 2017-2389 K C], decided herewith), the order is affirmed.

PESCE, P.J., ALIOTTA and SIEGAL, JJ., concur.

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Hollander Legal Group , P.C. (Nathan Shapiro of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Richard J. Montelione, J.), entered December 20, 2016. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

ORDERED that the order is modified by providing that defendant’s 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 appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for duly scheduled examinations under oath, and denied plaintiff’s cross motion for summary judgment.

We find that there is an issue of fact as to whether plaintiff’s claims were timely denied, as there is a significant discrepancy between the date the bills were sent, as claimed by plaintiff, and the date the bills were received, as claimed by defendant (see Complete Radiology, P.C. v Progressive Ins. Co., 37 Misc 3d 133[A], 2012 NY Slip Op 52079[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]).

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

PESCE, P.J., ALIOTTA and SIEGAL, JJ., concur.

Petitioner appeals from an order and judgment of the Civil Court of the City of New York, New York County (Mary V. Rosado, J.), entered on or about April 26, 2018, which denied its petition to vacate a master arbitration award in favor of respondent and confirmed the award.

Per Curiam.

Order and judgment (Mary V. Rosado, J.), entered on or about April 26, 2018, affirmed, with $25 costs.

Petitioner failed to demonstrate the existence of any of the statutory grounds for vacating the Master Arbitrator’s award (see CPLR 7511[b]). “Since the master arbitrator found that the no-fault arbitrator reached the decision in a rational manner and that the decision was not arbitrary or capricious, incorrect as a matter of law, in excess of policy limits, or in conflict with other no-fault arbitration proceedings there were no grounds for its vacatur; the motion court correctly upheld the master arbitrator’s determination” (Matter of Miller v Elrac, LLC, 170 AD3d 436 [2019], lv denied 33 NY3d 907 [2019]). In particular, since the arbitrator’s rejection of petitioner’s IME no show defense was based, inter alia, upon her review of the proof of mailing the IME notices, the claimant’s appearance at eight prior scheduled IMEs and petitioner’s treatment of claimant as an adversary, the determination was therefore rational, as it was based on the evidence before her (see Matter of Amtrust Group v American Tr. Ins. Co., 161 AD3d 537 [2018]; Park v Long Is. Ins. Co., 13 AD3d 506 [2004]; Empire Mut. Ins. Co. v Hornick, 189 AD2d 707 [1993]).

We note that petitioner does not dispute that the parties agreed, in effect, to bifurcate the arbitration so as to limit the issue before the arbitrator to a determination of the IME no show defense. In the circumstances, petitioner’s complaint that the arbitrator did not resolve other issues is unavailing (see American Intl. Specialty Lines Ins. Co. v Allied Capital Corp., 167 AD3d 142 [2018]).

We have considered petitioner’s remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Decision Date: October 04, 2019

Zara Javakov, P.C. (Zara Javakov of counsel), for appellant. Rivkin Radler, LLP, for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Odessa Kennedy, J.), entered November 16, 2017. 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 on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs).

Contrary to plaintiff’s contention, defendant was not required to set forth objective reasons for requesting the EUOs in order to establish its prima facie entitlement to summary judgment, as an insurer need only demonstrate “as a matter of law that it twice duly demanded an [EUO] from the [provider] . . . that the [provider] twice failed to appear, and that the [insurer] issued a timely denial of the claim[]” (Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2014]; see 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]; 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]).

Accordingly, the order is affirmed.

PESCE, P.J., ALIOTTA and SIEGAL, JJ., concur.

Defendant appeals from an order of the Civil Court of the City of New York, New York County (Debra R. Samuels, J.), entered November 27, 2018, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Debra R. Samuels, J.), entered November 27, 2018, affirmed, with $10 costs.

Defendant-insurer’s motion for summary judgment dismissing the underlying first-party no-fault action was properly denied, inasmuch as it failed to submit competent evidence of the assignor’s nonappearance at scheduled independent medical examinations (IMEs) (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]). The conclusory affirmation of defendant’s IME doctor lacked probative value, since he failed to adequately state the basis of his recollection, some 16 months later, that the assignor did not appear on the scheduled IME dates (see Utica Acupuncture P.C. v Amica Mut. Ins. Co., 55 Misc 3d 126[A], 2017 NY Slip Op50331[U][App Term, 1st Dept 2017]; Five Boro Med. Equip., Inc. V Praetorian Ins. Co., 53 Misc 3d 138[A], 2016 NY Slip Op 51481[U] [App Term, 1st Dept 2016]). Nor was personal knowledge of the assignor’s nonappearance established by the affidavit from the IME schedulingvendor. “The ‘mere fact that the recording of [the] third-party statements [of nonappearances] by the [IME doctor] might be routine, imports no guarantee of the truth, or even reliability, of those statements’ (Matter of Leon RR, 48 NY2d 117, 123 [1979]; cf. Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498, 508 [2015]” (Metro 8 Med. Equip., Inc. v ELRAC, Inc., 50 Misc 3d 140[A], 2016 NY Slip Op 50174[U][App Term, 1st Dept 2016]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Law Offices of Aloy O. Ibuzor (Janice A. Robinson of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered September 28, 2017. The order denied plaintiff’s motion (1) to vacate an order of that court entered August 12, 2016 which, upon plaintiff’s failure to timely submit opposition to defendant’s prior motion for summary judgment dismissing the complaint and to timely file its cross motion for summary judgment, granted defendant’s prior motion and denied plaintiff’s cross motion and, (2) upon such vacatur, to deny defendant’s prior motion and grant plaintiff’s cross motion.

ORDERED that the order entered September 28, 2017 is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment. A stipulation signed by the parties on November 9, 2015 provided that opposition to defendant’s motion and any cross motion “must be served on or before” June 12, 2016, that any cross motion served later “will be deemed as untimely,” and “[a]ll papers served beyond the within deadlines shall be deemed null and void.” It is uncontested that plaintiff’s opposition to defendant’s motion and plaintiff’s cross motion for summary judgment were served on July 7, 2016. By order entered August 12, 2016, the Civil Court granted defendant’s motion and denied plaintiff’s cross motion, noting that the cross motion had been served beyond the time set therefor in the stipulation, and dismissed the complaint. Thereafter, plaintiff moved to vacate the August 12, 2016 order and, upon such vacatur, to deny defendant’s motion and grant plaintiff’s cross motion on the ground that it had timely served its opposition to defendant’s motion and its cross motion. Plaintiff appeals from an order of the Civil Court entered September 28, 2017 which denied plaintiff’s motion.

In its motion papers, plaintiff asserted, incorrectly, that it had served its opposition to [*2]defendant’s motion and its cross motion in accordance with the time set forth therefor in the stipulation. However, the unequivocal language of the stipulation provided that service of opposition papers and any cross motion must be on or before June 12, 2016 and that any cross motion served beyond June 12, 2016 would be deemed untimely and “null and void.” Consequently, in order to warrant the relief requested, plaintiff was required to demonstrate both a reasonable excuse for its default and a potentially meritorious opposition to defendant’s motion (see CPLR 5015 [a]; Estrada v Selman, 130 AD3d 562 [2015]). Plaintiff failed to provide any excuse for its default in its motion papers.

For the first time on appeal, plaintiff states that its counsel “misread the stipulation as providing a due date of July 12, 2016.” However, we do not consider arguments or factual assertions raised for the first time on appeal (see Chimarios v Duhl, 152 AD2d 508 [1989]).