Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered April 1, 2013. 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 for summary judgment dismissing the complaint.

Plaintiff correctly argues that defendant’s cross motion should have been denied. The attorney’s affirmation submitted by defendant in support of its claim that plaintiff’s assignor had failed to appear for examinations under oath (EUOs), which stated, in a conclusory manner, that plaintiff’s assignor had failed to appear at duly scheduled EUOs, was insufficient to establish defendant’s entitlement to summary judgment (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; Alrof, Inc. v Safeco Natl. Ins. Co., 39 Misc 3d 130[A], 2013 NY Slip Op 50458[U] [App Term, 2d, 11th & 13th Jud Dists 2013]). In addition, defendant’s cross-moving papers did not establish that plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations (IMEs), as there was no evidence presented to establish that IME scheduling letters had ever been mailed to plaintiff’s assignor (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) and that the assignor had failed to appear for such IMEs (see Stephen Fogel Psychological, P.C., 35 AD3d at 722). Consequently, defendant is not entitled to summary judgment dismissing the complaint.

However, contrary to plaintiff’s contention, 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. 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, 11th & 13th Jud Dists 2011]).

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

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

Appeal from an order of the Civil Court of the City of New York, Queens County (Jodi Orlow, J.), entered March 19, 2013. 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. The Civil Court denied plaintiff’s motion, and granted defendant’s cross motion on the ground that defendant had established that plaintiff’s assignor was not entitled to receive no-fault benefits from defendant since plaintiff’s assignor had been injured while driving a vehicle insured by a different insurer.

In support of its cross motion for summary judgment dismissing the complaint, defendant relied upon a conclusory affidavit from its no-fault claims supervisor and a partially illegible copy of a police report which, according to defendant’s counsel, purported to establish that, when the accident occurred, plaintiff’s assignor was in a car insured by another insurer and not an occupant in the vehicle insured by defendant. However, as the foregoing was insufficient to establish, as a matter of law, that defendant did not insure the vehicle in which plaintiff’s assignor was riding when the accident occurred, defendant’s cross motion should have been denied (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Plaintiff’s contention that its motion for summary judgment should have been granted lacks merit. As the record reflects the existence of an issue of fact as to whether, when the accident occurred, plaintiff’s assignor was in the vehicle insured by defendant, plaintiff failed to establish as a matter of law that there was coverage by defendant of plaintiff’s assignor’s claims (see Zappone v Home Ins. Co., 55 NY2d 131, 135-136 [1982]).

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.

Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered April 1, 2013. 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. The Civil Court denied plaintiff’s motion and granted defendant’s cross motion on the ground that plaintiff had failed to provide requested verification.

In support of its cross motion, defendant submitted an affidavit by its no-fault examiner which was sufficient to demonstrate prima facie that it had not received the requested verification and, thus, that plaintiff’s action is premature (see 11 NYCRR 65-3.8 [a]; Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]). However, in opposition to the cross motion, plaintiff submitted an 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 the action is premature (see Healing Health Prods., Inc. v New York Cent. Mut. Fire Ins. Co., 44 Misc 3d 59 [App Term, 2d, 11th & 13th Jud Dists 2014]).

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.

Appeal from an order of the Civil Court of the City of New York, Queens County (Barry A. Schwartz, J.), entered February 25, 2013. 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.

Defendant submitted sufficient proof to show that the independent medical examination (IME) scheduling letters and the denial of claim forms, which denied the claims on the ground that plaintiff’s assignor had failed to appear for duly scheduled IMEs, had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Defendant further demonstrated that plaintiff’s assignor had not appeared for the duly scheduled IMEs and, thus, that plaintiff’s assignor had failed to comply with a condition precedent to coverage (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). As plaintiff failed to raise a triable issue of fact in opposition to defendant’s cross motion, defendant’s cross motion was properly granted.

Accordingly, the order is affirmed.

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

Appeal from an order of the Civil Court of the City of New York, Queens County (Ulysses Bernard Leverett, J.), entered February 21, 2013. The order, insofar as appealed from as limited by the brief, denied plaintiff’s motion for summary judgment and granted the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims that had been denied due to the failure of plaintiff’s assignor to appear for examinations under oath and independent medical examinations.

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, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. The Civil Court, insofar as is relevant to this appeal, denied plaintiff’s motion and granted the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims which had been timely and properly denied on the ground that plaintiff’s assignor had failed to appear for examinations under oath (EUOs) and independent medical examinations (IMEs).

Contrary to plaintiff’s contention, defendant established that EUO scheduling letters had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) and that plaintiff’s assignor had failed to appear for the duly scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Thus, defendant demonstrated that plaintiff’s assignor had failed to comply with a condition precedent to coverage (id. at 722). As defendant had timely denied (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123) the claims at issue on the ground that plaintiff’s assignor had failed to appear for duly scheduled EUOs, and as plaintiff’s remaining contentions lack merit, defendant was entitled to summary judgment dismissing these claims.

In light of the foregoing, we need not pass upon plaintiff’s contention that defendant failed to establish that plaintiff’s assignor had failed to appear for duly scheduled IMEs.

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

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

Appeal from an order of the Civil Court of the City of New York, Queens County (Ulysses Bernard Leverett, J.), entered February 19, 2013. 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 dismissing the complaint is granted.

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, alleging that the claim at issue had been timely and properly denied based upon plaintiff’s assignor’s failure to appear at duly scheduled examinations under oath (EUOs). Insofar as is relevant to this appeal, the Civil Court denied defendant’s cross motion, finding that there was an issue of fact as to whether plaintiff’s assignor had failed to appear for the duly scheduled EUOs.

The affirmation submitted by defendant’s attorney in support of defendant’s cross motion sufficiently described the standard practices and procedures of his office for mailing EUO scheduling letters (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Furthermore, defendant established, based upon the personal knowledge of the attorney who was responsible for conducting the EUOs at issue, that plaintiff’s assignor had failed to appear for either of the duly scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; Olmeur Med., P.C. v Nationwide Gen. Ins. Co., 41 Misc 3d 143[A], 2013 NY Slip Op 52031[U] [App Term, 2d, 11th & 13th Jud Dists 2013]). Contrary to the determination of the Civil Court, defendant’s annexation of EUO transcripts demonstrating that a different assignor had also failed to appear for that assignor’s EUOs did not demonstrate the existence of a triable issue of fact in the instant action. Since defendant demonstrated that plaintiff’s assignor had failed to comply with a condition precedent to coverage (see Stephen Fogel Psychological, P.C., 35 AD3d at 722) and that defendant had timely denied (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123) the claim on that ground, defendant was entitled to summary judgment dismissing the complaint.

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

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

Appeal from an order of the Civil Court of the City of New York, Queens County (Carmen R. Velasquez, J.), entered February 14, 2013. 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 the branch of plaintiff’s motion seeking summary judgment upon its third cause of action is granted and the branch of defendant’s cross motion seeking summary judgment dismissing the third cause of action is denied, and the matter is remitted to the Civil Court for the calculation of statutory interest and an assessment of attorney’s fees with respect to this cause of action; 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. The Civil Court denied plaintiff’s motion and granted defendant’s cross motion.

Contrary to plaintiff’s contention, defendant established that the independent medical examination (IME) and examination under oath (EUO) scheduling letters 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 for the duly scheduled IMEs and EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]), and that defendant had timely denied (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123) the claims underlying the first, second, and fourth through eighth causes of action on these grounds. Since defendant demonstrated that plaintiff’s assignor had failed to comply with a condition precedent to coverage (see Stephen Fogel Psychological, P.C., 35 AD3d at 722) and plaintiff failed to raise a triable issue of fact in opposition to defendant’s cross motion, defendant was entitled to summary judgment dismissing these causes of action.

However, with respect to the third cause of action, the record establishes that the claim at issue was not denied within 30 days of its receipt (see 11 NYCRR 65-3.8 [a] [1]) and defendant did not demonstrate that the 30-day claim determination period (see 11 NYCRR 65-3.8) had been tolled. As a result, since defendant is precluded from asserting, with respect to this claim, its defense that plaintiff’s assignor had failed to appear for the duly scheduled IMEs and EUOs (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2009]), plaintiff is entitled to summary judgment upon its third cause of action.

Accordingly, the order is modified by providing that the branch of plaintiff’s motion seeking summary judgment upon its third cause of action is granted and the branch of defendant’s cross motion seeking summary judgment dismissing the third cause of action is denied, and the matter is remitted to the Civil Court for the calculation of statutory interest and an assessment of attorney’s fees with respect to this cause of action pursuant to Insurance Law § 5106 (a) and the [*2]regulations promulgated thereunder.

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