Decided on December 15, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2014-2107 Q C

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum, Esq.), for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Queens County (Carmen R. Velasquez, J.), entered July 14, 2014, deemed an appeal, on the ground of inadequacy, from a judgment of the same court entered August 14, 2014 (see CPLR 5512 [a]). The judgment, entered pursuant to the July 14, 2014 order granting plaintiff’s motion for summary judgment only to the extent of awarding plaintiff the principal sum of $11.45 and granting defendant’s cross motion for summary judgment to the extent of dismissing the remainder of the complaint, awarded plaintiff the principal sum of $11.45.

ORDERED that the judgment is reversed, with $30 costs, so much of the order entered July 14, 2014 as granted defendant’s cross motion for summary judgment to the extent of dismissing so much of the complaint as sought a sum greater than $11.45 is vacated, and defendant’s cross motion, insofar as reviewed, is denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff seeks to recover the sum of $3,748.69 for services rendered. Plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint, alleging that, after receiving the bill in question on August 17, 2012, defendant denied the claim in full on September 11, 2012 but had subsequently paid the sum of $256.34 on December 13, 2012. Defendant conceded in its cross motion that, in accordance with the workers’ compensation fee [*2]schedule, it should have paid plaintiff $267.79, and agreed that it should pay the difference of $11.45 with appropriate interest. By order entered July 14, 2014, the Civil Court granted plaintiff’s motion only to the extent of awarding plaintiff the principal sum of $11.45, plus statutory interest thereon, and granted defendant’s cross motion for summary judgment to the extent of dismissing the remainder of the complaint. Plaintiff’s appeal from the July 14, 2014 order is deemed to be an appeal, on the ground of inadequacy, from the judgment entered pursuant thereto on August 14, 2014 (see CPLR 5512 [a]).

Plaintiff correctly argues that defendant did not demonstrate, as a matter of law, that the sum of $267.79 would fully compensate plaintiff for the services at issue in accordance with the workers’ compensation fee schedule. Consequently, defendant’s cross motion, insofar as reviewed, should have been denied.

However, plaintiff failed to establish its prima facie entitlement to summary judgment on any amount in excess of $11.45, since the proof submitted by plaintiff failed to establish that the claim had not been timely denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]) or that defendant had issued a timely denial with respect thereto 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 Dept, 2d, 11th & 13th Jud Dists 2011]).

We note that plaintiff correctly argues that it will, at the conclusion of this case, be entitled to recover statutory interest on the sum of $256.34 for the period between the date on which that sum became due and the date on which defendant paid it, and on the sum of $11.45 for the period between the date on which that sum became due and the date on which defendant will have paid it (see Optimal Well-Being Chiropractic, P.C. v MVAIC, 46 Misc 3d 134[A], 2014 NY Slip Op 51861[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]).

Accordingly, the judgment is reversed, so much of the order entered July 14, 2014 as granted defendant’s cross motion for summary judgment to the extent of dismissing so much of the complaint as sought a sum greater than $11.45 is vacated, and defendant’s cross motion, insofar as reviewed, is denied.

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

Decided on December 15, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2014-2066 Q C

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Dodge & Monroy, P.C. (Peter X. Dodge, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered July 31, 2014. 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 two grounds, including that plaintiff had failed to appear for duly scheduled examinations under oath (EUO).

Contrary to plaintiff’s contention, defendant demonstrated, prima facie, that its denial of claim form had been issued within 30 days of its receipt of the bills at issue, and plaintiff failed to rebut that showing. As plaintiff raised no other issue on appeal with respect to defendant’s proof regarding its defense that plaintiff had failed to appear for scheduled EUOs, we need not consider plaintiff’s remaining arguments.

Accordingly, the order is affirmed.

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

Decided on December 15, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2014-1851 Q C

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Law Offices of Rubin & Nazarian (Lawrence R. Miles, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Ulysses Bernard Leverett, J.), entered July 21, 2014. The order, insofar as appealed from, denied the branches of plaintiff’s motion seeking summary judgment on the third through sixth causes of action and, upon denying the branches of defendant’s cross motion seeking summary judgment dismissing those causes of action, found, in effect pursuant to CPLR 3212 (g), that defendant had properly and timely mailed independent medical examination scheduling letters.

ORDERED that the order, insofar as appealed from, is modified by striking the findings, in effect pursuant to CPLR 3212 (g), that defendant had properly and timely mailed independent medical examination scheduling letters and that the sole issue for trial is whether the claimant failed to appear for scheduled independent medical examinations; as so modified, the order, insofar as appealed from, 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 on the ground that plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations (IMEs). By order entered July 21, 2014, the Civil Court granted the branches of plaintiff’s motion seeking summary judgment on the first and second causes of action, denied the branches of plaintiff’s motion seeking summary judgment on the [*2]third through sixth causes of action and, upon denying the branches of defendant’s cross motion seeking summary judgment dismissing the third through sixth causes of action, found, in effect pursuant CPLR 3212 (g), that plaintiff had established “timely and proper generating and mailing [of] its bills,” that defendant had established timely and properly mailing of the IME scheduling letters and denials, and that the “sole issue for trial is whether the claimant failed to appear for the scheduled IMEs.” Plaintiff appeals.

On appeal, plaintiff argues that the branches of defendant’s cross motion seeking summary judgment dismissing the third through sixth causes of action should not have been granted and that plaintiff should be given a finding, pursuant to CPLR 3212 (g), that it established the submission of the relevant claim forms. This court need not consider those arguments, as the Civil Court did not grant any branch of defendant’s cross motion and did make a finding, in effect pursuant to CPLR 3212 (g), that plaintiff had timely submitted the bills.

Plaintiff further argues that defendant’s proof of mailing of the IME scheduling letters was insufficient to establish that they had been properly mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Construing that argument to be a challenge to the court’s finding, in effect pursuant to CPLR 3212 (g), that defendant had timely and properly mailed such letters, we agree that the discrepancy between the assignor’s address as listed on the claim forms and on the assignment of benefits form, and the address to which the IME scheduling letters were allegedly sent, demonstrates that it cannot be said that it is “incontrovertible” and “established for all purposes in the action” (CPLR 3212 [g]) that the IME scheduling letters were properly mailed. Consequently, that finding and the finding that the sole issue for trial is whether the claimant appeared for the IMEs should be stricken. We note that plaintiff raises no challenge as to defendant’s proof of mailing of the denials.

Contrary to plaintiff’s argument, plaintiff failed to establish a prima facie showing of entitlement to summary judgment on the third through sixth causes of action, for the reason, among others, that plaintiff failed to establish that the claims underlying those causes of action had not been timely denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]) or that defendant had issued timely denial of claims 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]).

Accordingly, the order, insofar as appealed from, is modified by striking the findings, in effect pursuant to CPLR 3212 (g), that defendant had properly and timely mailed the IME scheduling letters and that the sole issue for trial is whether the claimant failed to appear for scheduled independent medical examinations.

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

Decided on December 15, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2014-748 K C

Gary Tsirelman, P.C. (Irena Golodkeyer, Esq.) for appellant. Rivkin Radler, LLP (Stuart M. Bodoff, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Dawn Jimenez Salta, J.), entered September 14, 2012. 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, the affirmation submitted by defendant’s attorney, who was present in her office to conduct plaintiff’s EUO on the scheduled dates, was sufficient to establish that plaintiff had failed to appear for the EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Plaintiff’s remaining contentions either lack merit or are improperly raised for the first time on appeal.

Accordingly, the order is affirmed.

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

Decided on December 12, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2014-2773 Q C

The Rybak Firm, PLLC (Joseph D. DePalma, Esq.), for appellant. Bruno, Gerbino & Soriano, LLP (Mitchell L. Kaufman, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Larry Love, J.), entered November 6, 2014. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that the branches of defendant’s motion seeking summary judgment dismissing the first and second causes of action are denied; as so modified, the order is affirmed, without 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 it had timely and properly denied the claims based upon plaintiff’s failure to appear for duly scheduled examinations under oath (EUOs). By order entered November 6, 2014, the Civil Court granted defendant’s motion.

Defendant’s moving papers failed to establish that the first EUO scheduling letter that defendant had sent to plaintiff was timely with respect to the claims underlying the first and second causes of action, as defendant stated that the letter had been sent more than 30 days after [*2]defendant had received those claims (see Neptune Med. Care, P.C. v Ameriprise Auto & Home Ins., 48 Misc 3d 139[A], 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]). Consequently, defendant failed to demonstrate that it had properly and timely denied those claims based upon plaintiff’s failure to comply with a condition precedent to coverage (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).

However, although the first EUO scheduling letter was mailed more than 15 business days after the claim underlying the third cause of action had been received, the NF-10 denying this claim was nevertheless timely (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]).

Accordingly, the order is modified by providing that the branches of defendant’s motion seeking summary judgment dismissing the first and second causes of action are denied.

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

Decided on December 12, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2014-2271 Q C

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Law Offices of Aloy O. Ibuzor (Arvind Purohit, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Sally E. Unger, J.), entered August 13, 2014. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is denied.

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 the action was premature because plaintiff had failed to provide requested verification. By order entered August 13, 2014, the Civil Court granted defendant’s motion.

In support of its motion for summary judgment dismissing the complaint, defendant established that it had timely mailed its verification request and follow-up verification request (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Defendant also demonstrated prima facie that it had not received the requested verification and, thus, that plaintiff’s action is premature (see Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]). However, in opposition to the motion, plaintiff submitted an [*2]affidavit from plaintiff’s owner, which affidavit was sufficient to give rise to a presumption that the requested verification had been mailed to, and received by, defendant (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). In light of the foregoing, there is a triable issue of fact as to whether this action is premature (see Healing Health Prods., Inc. v New York Cent. Mut. Fire Ins. Co., 44 Misc 3d 59 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]).

Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is denied.

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

Decided on December 8, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2015-144 Q C

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Law Office of Nancy Linden, for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered December 10, 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 appeals from an order of the Civil Court which denied plaintiff’s motion for summary judgment, and granted 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 independent medical examinations (IMEs).

In support of its cross motion, defendant failed to establish that the initial and follow-up IME scheduling letters had been timely mailed (see St. Vincent’s Hosp. of Richmond v [*2]Government Empls. Ins. Co., 50 AD3d 1123 [2008]). As a result, defendant failed to demonstrate that the IMEs had been properly scheduled and, thus, that plaintiff’s assignor had failed to appear at duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Consequently, defendant is not entitled to summary judgment dismissing the first and third through sixth causes of action.

However, contrary to plaintiff’s contention, plaintiff failed to demonstrate its prima facie entitlement to summary judgment on those causes of action, as the affidavit plaintiff submitted in support of its motion failed to establish that the claims at issue had not been timely denied (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]).

There is a triable issue of fact as to whether defendant received the claim form underlying the second cause of action (see Compas Med., P.C. v 21st Century Ins. Co., 47 Misc 3d 128[A], 2015 NY Slip Op 50388[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).

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

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

Decided on December 8, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2015-8 K C

Kopelevich & Feldsherova, P.C. (Galina Feldsherova, Esq.), for appellant. Bruno, Gerbino & Soriano, LLP (Mitchell L. Kaufman, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered October 28, 2014. 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.

Contrary to plaintiff’s contention, the proof submitted by defendant established that plaintiff had failed to appear for duly scheduled examinations under oath (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; Ortho Prods. & Equip., Inc. v Interboro Ins. Co., 41 Misc 3d 143[A], 2013 NY Slip Op 52054[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]). Furthermore, “the failure to set forth the dates of the scheduled examinations in the denial of claim form[s] did not render the denial[s] conclusory, vague, or without merit as a matter of law” (Quality Psychological Servs., P.C. v Avis [*2]Rent-A-Car Sys., LLC, 47 Misc 3d 129[A], 2015 NY Slip Op 50378[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Plaintiff’s remaining contentions lack merit or were raised for the first time on appeal.

Accordingly, the order is affirmed.

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

Decided on December 8, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2014-2916 K C

Freiberg, Peck & Kang, LLP (Yilo J. Kang, Esq.), for appellant. Zara Javakov, P.C. (Zara Javakov, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Carol Ruth Feinman, J.), entered October 20, 2014. 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 affirmed, with $25 costs.

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 motion which had sought summary judgment dismissing the complaint based upon a lack of medical necessity.

Upon a review of the record, we find that there is a triable issue of fact regarding the medical necessity of the services at issue (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

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

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

Decided on December 8, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2014-2638 K C

Robyn M. Brilliant, P.C. (Robyn M. Brilliant, Esq.), for appellant. Anna Rusanov, P.C. (Anna Rusanov, Esq.), for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Reginald A. Boddie, J.), entered September 11, 2014. The order granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that plaintiff’s motion for summary judgment 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, defendant appeals from an order of the Civil Court which granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint.

Defendant correctly argues that plaintiff failed to demonstrate its prima facie entitlement to summary judgment, as the affidavit plaintiff submitted in support of its motion failed to establish that the claim at issue had not been timely denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]) 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. [*2]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]). Consequently, plaintiff’s motion for summary judgment should have been denied.

However, the affidavits submitted by defendant did not sufficiently set forth a standard office practice or procedure that would ensure that the denial of claim forms had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Thus, defendant did not demonstrate its entitlement to summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for examinations under oath.

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

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