The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Rivkin Radler, LLP (Stuart M. Bodoff and Cheryl F. Korman of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Devin P. Cohen, J.), entered January 14, 2016. 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.

For the reasons stated in Island Life Chiropractic Pain Care, PLLC, as Assignee of Cooper, Kadeem v State Farm Mut. Auto. Ins. Co. (__ Misc 3d ___, 2018 NY Slip Op _____ [appeal No. 2016-435 K C], decided herewith), the order is affirmed.

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

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered January 20, 2016. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that the branch of defendant’s motion seeking summary judgment dismissing the first cause of action 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 had failed to appear for duly scheduled examinations under oath (EUOs).

Contrary to plaintiff’s argument, defendant’s proof was sufficient to establish plaintiff’s nonappearance at an initial and follow-up EUO (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).

However, plaintiff correctly argues that defendant failed to demonstrate that it was entitled to summary judgment dismissing the first cause of action based on plaintiff’s failure to appear for EUOs, as the initial EUO request had been sent more than 30 days after defendant had received the claim underlying that cause of action, and, therefore, the request was a nullity as to that claim (see Neptune Med. Care, P.C. v Ameriprise Auto & Home Ins., 48 Misc 3d 139[A], [*2]2015 NY Slip Op 51220[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; O & M Med., P.C. v Travelers Indem. Co., 47 Misc 3d 134[A], 2015 NY Slip Op 50476[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).

Accordingly, the order is modified by providing that the branch of defendant’s motion seeking summary judgment dismissing the first cause of action is denied.

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

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Devin P. Cohen, J.), entered January 14, 2016. 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 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 denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations (IMEs).

Contrary to plaintiff’s contention, the affirmation defendant submitted from the doctor who was to perform the scheduled IMEs of plaintiff’s assignor was sufficient to establish that plaintiff’s assignor had failed to appear for those IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; 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’s remaining contention with respect to this defense is not properly before this court, as this argument is being raised for the first time on appeal (see Joe v Upper Room Ministries, Inc., 88 AD3d 963 [2011]; Gulf Ins. Co. v Kanen, 13 AD3d 579 [2004]), and we decline to consider it.

Accordingly, the order is affirmed.

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

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Law Offices of Buratti, Rothenberg & Burns (Sharon A. Brennan of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Terrence C. O’Connor, J.), entered December 22, 2015. 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 on the ground that plaintiff’s assignor had failed to appear for examinations under oath (EUOs).

Plaintiff correctly contends that the letters annexed to defendant’s motion as Exhibit “C” were delay letters which failed to toll defendant’s time to pay or deny the claims. However, defendant’s motion also included copies of the EUO scheduling letters mailed by the law firm retained by defendant to conduct the EUOs, and plaintiff has raised no issue with respect to the sufficiency of those letters (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Great Health Care Chiropractic, P.C. v Nationwide Ins., 46 Misc 3d 130[A], 2014 NY Slip Op 51812[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]).

In view of the foregoing, and since plaintiff’s remaining contention lacks merit, plaintiff has provided no basis upon which to reverse the order.

Accordingly, the order is affirmed.

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

Gary Tsirelman, P.C. (Stefan Belinfanti of counsel), for appellant. Rivkin Radler, LLP (Stuart M. Bodoff and Cheryl F. Korman of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Theresa M. Ciccotto, J.), entered June 4, 2015. 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 (EUOs) and denied plaintiff’s cross motion for summary judgment. This case involves 17 bills which had been received by defendant between November 18, 2011 and July 20, 2012.

Plaintiff does not dispute that a letter scheduling its EUO was mailed to plaintiff on December 13, 2011, or that a follow-up scheduling letter was timely mailed. Contrary to plaintiff’s main contention on appeal, once that initial letter was mailed to plaintiff, the toll of defendant’s time to pay or deny plaintiff’s claims applied to any claim form submitted by plaintiff for the same assignor and accident subsequent to that request, but before plaintiff breached a policy condition by failing to appear for two properly scheduled EUOs (see 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]), in this case, the four claim forms defendant received on December 14, [*2]2011.

While plaintiff notes that the first EUO scheduling letter was mailed 16 business days after defendant’s receipt of two bills on November 18, 2011, which is one day later than is set forth in the Insurance Department Regulations (11 NYCRR 65-3.5 [b]) for the time to seek verification, it fails to explain why this should result in even the partial denial of defendant’s motion, since the denial of claim forms with respect to those two bills were mailed 21 days after plaintiff’s failure to appear for the second EUO (see 11 NYCRR 65-3.8 [l] [providing that deviations from the verification time frames reduce the 30 days to pay or deny the claim by the same number of days that the verification request was late]).

Plaintiff’s remaining contentions are without merit.

Accordingly, the order is affirmed.

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

Defendant, as limited by its brief, appeals from so much of an order of the Civil Court of the City of New York, New York County (Debra Rose Samuels, J.), entered June 1, 2018, as denied, in part, its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Debra Rose Samuels, J.), entered June 1, 2018, insofar as appealed, affirmed, with $10 costs.

This action, seeking recovery of assigned first-party no-fault benefits, is not ripe for summary disposition. Defendant’s conflicting and contradictory submissions, regarding the amount it purportedly paid on the claims and when, create rather than eliminate triable issues as to whether the claims were timely and properly denied in accordance with the applicable fee schedules (see Lotus Acupuncture PC v Hereford Ins. Co., 58 Misc 3d 148[A], 2018 NY Slip Op 50057[U] [App Term 1st Dept 2018]; Healthy Way Acupuncture, P.C. v Clarendon Natl. Ins. Co., 55 Misc 3d 127[A], 2017 NY Slip Op 50345[U] [App Term, 1st Dept 2017]; Devonshire Surgical Facility, LLC v Allstate Ins. Co., 38 Misc 3d 127[A], 2012 NY Slip Op 52351[U] [App Term, 1st Dept 2012]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Defendant appeals from so much of an order of the Civil Court of the City of New York, New York County (Joan M. Kenney, J.), entered December 18, 2017, that denied, in part, its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Joan M. Kenney, J.), entered December 18, 2017, insofar as appealed from, reversed, with $10 costs, motion granted in its entirety, and the complaint dismissed. The Clerk is directed to enter judgment accordingly.

The defendant-insurer made a prima facie showing of entitlement to judgment as a matter of law by demonstrating that it timely denied plaintiff’s first-party no-fault claims based on an affirmed independent examination report [IME] of its examining orthopedist, which set forth a factual basis and medical rationale for his stated conclusion that the assignor’s injuries were resolved and that there was no need for further treatment (see Mingmen Acupuncture Servs., PC v Global Liberty Ins. Co. of NY, 61 Misc 3d 128[A], 2018 NY Slip Op 51358[U] [App Term, 1st Dept 2018]; Rummel G. Mendoza, D.C., P.C. v Chubb Indem. Ins. Co., 47 Misc 3d 156[A], 2015 NY Slip Op 50900[U][App Term, 1st Dept 2015]).

In opposition, the medical affirmation submitted by plaintiff failed to raise a triable issue since it was not based on an examination of the assignor, nor did it meaningfully rebut the findings of defendant’s examining physician (see Arnica Acupuncture PC v Interboard Ins. Co., 137 AD3d 421 [2016]; Rummel G. Mendoza, D.C., P.C. v Chubb Indem. Ins. Co., 47 Misc 3d 156[A]). Nor did the assignor’s subjective complaints of pain overcome the objective medical tests detailed in the IME report (see Arnica Acupuncture PC v Interboard Ins. Co., 137 AD3d 421).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.