Kopelevich & Feldsherova, P.C. (Mikhail Kopelevich of counsel), for appellant. Law Offices of Buratti, Rothenberg & Burns (Elke E. Mirabella 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 December 7, 2015. 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, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for 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 his place of residence.

“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 [*2]demonstrate, prima facie, that the misrepresentation by plaintiff’s assignor was material.

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

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

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. The Law Office of Tobias & Kuhn (Marisa Villeda 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 17, 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 and denied plaintiff’s cross motion for summary judgment. The court found that defendant had established that there was no coverage for no-fault benefits since defendant had demonstrated that the Workers’ Compensation Board had awarded workers’ compensation benefits to plaintiff’s assignor for injuries she had sustained in the accident which gave rise to the claims at issue.

Contrary to plaintiff’s contention, a lack of coverage defense may be raised without regard to any issue as to the propriety or timeliness of an insurer’s denial of claim form (see Zappone v Home Ins. Co., 55 NY2d 131, 135-136 [1982] [lack of coverage defense is not precluded]; see also Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195 [1997]). The papers submitted by defendant in support of its motion, and by plaintiff in support of its cross motion, established that plaintiff had submitted claims for workers’ compensation benefits and that the Workers’ Compensation Board had awarded plaintiff’s assignor workers’ compensation benefits [*2]for injuries she had sustained in the accident at issue. As plaintiff failed to demonstrate the existence of a triable issue of fact, the order is affirmed.

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

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. The Law Office of Tobias & Kuhn (Marisa Villeda 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 17, 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 and denied plaintiff’s cross motion for summary judgment. The court found that defendant had established that there was no coverage for no-fault benefits because defendant had demonstrated that the Workers’ Compensation Board had awarded workers’ compensation benefits to plaintiff’s assignor for injuries she had sustained in the accident which gave rise to the claims at issue.

For the reasons stated in Active Care Med. Supply Corp., as Assignee of Holland, Monique v Hartford Ins. Co. (__ Misc 3d ___, 2018 NY Slip Op _____ [appeal No. 2016-189 K C], decided herewith), the order is affirmed.

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

Law Office of Melissa Betancourt, P.C. (Melissa Betancourt of counsel), for appellants. Law Office of Lawrence R. Miles (Thomas Wolf of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Ingrid Joseph, J.), entered November 6, 2015. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiffs’ cross motion for summary judgment.

ORDERED that the order is affirmed, with $25 costs.

In this action by providers to recover assigned first-party no-fault benefits, plaintiffs appeal from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint on the ground that the insured vehicle had not been involved in the alleged accident on February 13, 2013, and denied plaintiffs’ cross motion for summary judgment.

For the reasons stated in Jamaica Wellness Med., P.C., as Assignee of Nelson Shaquan v Hereford Ins. Co. (__ Misc 3d ___, 2018 NY Slip Op _____ [appeal No. 2015-2655 K C], decided herewith), the order is affirmed.

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

Law Office of Melissa Betancourt, P.C. (Melissa Betancourt of counsel) for appellants. Law Office of Lawrence R. Miles (Thomas Wolf of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Reginald A. Boddie, J.), entered September 25, 2015. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiffs’ cross motion for summary judgment.

ORDERED that the order is affirmed, with $25 costs.

In this action by providers to recover assigned first-party no-fault benefits, plaintiffs appeal from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint on the ground that the insured vehicle had not been involved in the alleged accident on February 13, 2013, and denied plaintiffs’ cross motion for summary judgment.

For the reasons stated in Jamaica Wellness Med., P.C., as Assignee of Nelson Shaquan v Hereford Ins. Co. (__ Misc 3d ___, 2018 NY Slip Op _____ [appeal No. 2015-2655 K C], decided herewith), the order is affirmed.

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

Law Offices of Melissa Betancourt (Melissa Betancourt of counsel), for appellant. Law Office of Lawrence R. Miles (Thomas Wolf of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Reginald A. Boddie, J.), entered September 25, 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 the insured vehicle had not been involved in the alleged accident on February 13, 2013, and denied plaintiff’s cross motion for summary judgment.

In support of its motion, defendant submitted a transcript of the examination under oath (EUO) of its insured in which he testified that he had picked up three customers and had been driving them to their destination when they repeatedly asked him to give them money. After he declined to do so, he was pulled over by the police, who advised him that the passengers had reported that the vehicle had been in an accident with another vehicle which had fled from the scene. Defendant’s insured testified that the vehicle had not been in an accident while the passengers had been in the car. The EUO testimony by defendant’s insured was sufficient to demonstrate, prima facie, that “the alleged injury [did] not arise out of an insured incident” (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]; see Andromeda Med. Care, P.C. v NY Cent. Mut. Fire Ins. Co., 26 Misc 3d 126[A], 2009 NY Slip Op 52601[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]; Midwood Med. Equip. & Supply, Inc. v USAA Cas. Ins. Co., 25 Misc 3d 139[A], 2009 NY Slip Op 52379[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]). Plaintiff failed to raise a triable issue of fact in opposition to defendant’s motion (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

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 Office of Daniel J. Tucker, for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Devin P. Cohen, J.), entered July 8, 2015. 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 moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint on the grounds that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs), and that, based on an independent medical examination (IME) of plaintiff’s assignor that had occurred prior to the receipt of the claim sued upon herein, there was a lack of medical necessity for the supplies in question. The Civil Court denied plaintiff’s motion and granted defendant’s cross motion.

Contrary to plaintiff’s argument, defendant’s proof sufficiently established the proper mailing of the EUO scheduling letters (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]), thereby tolling its time to pay or deny the claim.

Plaintiff does not dispute that, within 30 days of the second EUO date, defendant denied the claim on EUO no-show and lack of medical necessity grounds, as it was entitled to do (see Alev Med. Supply, Inc. v New York Cent. Mut. Fire Ins. Co., 38 Misc 3d 143[A], 2013 NY Slip Op 50258[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]). While plaintiff correctly argues that the proof defendant submitted in support of its cross motion was insufficient to establish plaintiff’s failure to appear for the EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]), defendant also submitted an affirmed report of an IME, conducted before the supplies at issue had been provided, which set forth a factual basis and medical rationale for the doctor’s determination that there was a lack of medical necessity for any further treatment or supplies. Contrary to plaintiff’s contention, the affidavit submitted by plaintiff in opposition to defendant’s cross motion failed to meaningfully refer to, let alone sufficiently rebut, the conclusions set forth in the IME report.

Accordingly, the order is affirmed.

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