The Rybak Firm, PLLC (Damin Toell of counsel), for appellant. Hollander Legal Group, P.C. (Allan Hollander 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 July 20, 2018. 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 granting 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 (EUOs), and denying plaintiff’s cross motion for summary judgment.

Contrary to plaintiff’s sole contention, defendant’s proof sufficiently established that plaintiff’s assignor had failed to appear for the scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).

Accordingly, the order is affirmed.

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

Rivkin Radler, LLP, (Stuart M. Bodoff and Cheryl F. Korman 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 (Michael Gerstein, J.), entered September 5, 2018. 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 reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is granted.

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, and plaintiff cross-moved for summary judgment. Defendant appeals from so much of an order of the Civil Court as denied defendant’s motion.

For the reasons stated in NL Quality Med., P.C., as Assignee of Sumlar, Tanya v GEICO Ins. Co., (___ Misc 3d ___, 2020 NY Slip Op ______ [appeal No. 2018-2004 K C], decided

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

Rivkin Radler, LLP (Stuart M. Bodoff and Cheryl F. Korman 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 (Michael Gerstein, J.), entered September 5, 2018. 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 reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is granted.

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), and plaintiff cross-moved for summary judgment. Defendant appeals from so much of an order of the Civil Court as denied defendant’s motion.

The affidavit 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 her office to conduct the EUO of plaintiff on the scheduled dates, was sufficient to establish that plaintiff had failed to appear on those dates. As a result, defendant demonstrated its prima facie entitlement to summary judgment (see Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2014]; Gentlecare Ambulatory Anesthesia Servs. v GEICO Ins. Co., 63 Misc 3d 152[A], 2019 NY Slip Op 50759[A] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; 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]). Plaintiff failed to raise a triable issue of fact in opposition to defendant’s motion.

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

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

Law Offices of Aloy O. Ibuzor (Michael Rappaport of counsel), for appellant. Gary Tsirelman, P.C. (Jung Pryjma of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered June 4, 2018. The order, insofar as appealed from and as limited by the brief, 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, as limited by the brief, from so much an order of the Civil Court as denied defendant’s motion which had sought summary judgment dismissing the complaint upon the ground that plaintiff’s assignor had procured the insurance policy in question by making a material misrepresentation as to the ownership and use of the vehicle in question.

“A misrepresentation is material if the insurer would not have issued the policy had it known the facts misrepresented. To establish materiality as a matter of law, the insurer must present documentation concerning its underwriting practices, such as underwriting manuals, bulletins, or rules pertaining to similar risks, that show that it would not have issued the same policy if the correct information had been disclosed in the application” (Interboro Ins. Co. v Fatmir, 89 AD3d 993, 994 [2011] [internal quotation marks and citations omitted]).

Upon a review of the record, we find that defendant failed to establish as a matter of law that it would not have issued the policy in question. Consequently, defendant did not demonstrate, prima facie, that the misrepresentation by plaintiff’s assignor was material (see Commitment Care, P.T., P.C. v Travelers Home & Mar. Ins. Co., 64 Misc 3d 136[A], 2019 NY Slip Op 51157[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]).

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

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

Gary Tsirelman, P.C. (Darya Klein of counsel), 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, Kings County (Odessa Kennedy, J.), entered May 16, 2018. 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 granting 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 (EUOs).

Contrary to plaintiff’s contention, defendant established as a matter of law that, as to the claim at issue, defendant “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 timely denial of the claim[ ]” (Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2014]). As a result, since appearance at a duly demanded EUO “is a condition precedent to the insurer’s liability on the policy” (Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 722 [2006]), contrary to plaintiff’s contention, defendant established its entitlement to summary judgment. Plaintiff’s remaining contentions are raised for the first time on appeal and, in any event, lack merit.

Accordingly, the order is affirmed.

Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum of counsel), for appellant. Law Offices of Ilona Finkelshteyn, P.C., for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Lorna J. McAllister, J.), entered April 17, 2018. The order, insofar as appealed from and as limited by the brief, denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is granted.

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’s assignor had failed to appear for duly scheduled independent medical examinations. By order entered April 17, 2018, the Civil Court, insofar as is relevant to this appeal, denied the motion, but found, in effect pursuant to CPLR 3212 (g), that defendant had established timely mailing of the denial of claim forms.

For the reasons stated in Colin, as Assignee of Tyrell Sloan v Global Liberty Ins. Co. of NY (___ Misc 3d ___, 2020 NY Slip Op ______ [appeal No. 2018-2315 K C], decided herewith), the order, insofar as appealed from, is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.

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

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Harris J. Zakarin, P.C. (Harris J. Zakarin 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 January 23, 2018. 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, defendant moved for summary judgment dismissing the complaint, arguing that plaintiff had failed to appear for examinations under oath (EUOs) and that the action was premature because plaintiff had failed to provide requested verification. Plaintiff cross-moved for summary judgment. By order entered January 23, 2018, the Civil Court granted defendant’s motion for summary judgment dismissing the complaint on the ground that the action was premature due to plaintiff’s failure to provide requested verification and denied plaintiff’s cross motion.

Defendant demonstrated, prima facie, that it had timely mailed initial and follow-up requests for verification (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) and had not received the requested verification. However, as plaintiff argues, the affidavit submitted by plaintiff in opposition to defendant’s motion was sufficient to give rise to a presumption that the requested verification had been mailed to, and received by, defendant (see id.). In light of the foregoing, there is a triable issue of fact as to whether the action is premature (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]). Plaintiff’s remaining contention lacks merit (see Frankel v Stavsky, 40 AD3d 918 [2007]).

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

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