Appeal from an order of the Civil Court of the City of New York, Kings County (Johnny Lee Baynes, J.), entered July 24, 2009, deemed from a judgment of the same court entered August 14, 2009 (see CPLR 5501 [c]).
Dvs Chiropractic, P.C. v Interboro Ins. Co.
Appellate Term, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
PRESENT: PESCE, P.J., WESTON and RIOS, JJ
The judgment, entered pursuant to the July 24, 2009 order granting plaintiff's motion for summary judgment and denying defendant's cross motion for summary judgment dismissing the complaint, awarded plaintiff the principal sum of $1,200.54.
ORDERED that the judgment 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. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).
Inasmuch as defendant raises no issue with respect to plaintiff's prima facie case, we do not pass upon the propriety of the Civil Court's determination with respect thereto.
Defendant denied the claims based upon the alleged failure by plaintiff's assignor to appear at duly scheduled examinations under oath (EUOs). However, according to the affidavit submitted by defendant, the initial EUO had twice been rescheduled by mutual agreement, prior to the dates set for each. We do not consider a mutual rescheduling, which occurs prior to the date of that scheduled EUO, to constitute a failure to appear (see Vitality Chiropractic, P.C. v Kemper Ins. Co., 14 Misc 3d 94 [App Term, 2d & 11th Jud Dists 2006]). Therefore, as defendant did not demonstrate that there had been a failure to appear at both an initial and a follow-up EUO, defendant did not prove that plaintiff had failed to comply with a condition precedent to coverage (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 ).
Accordingly, the judgment is affirmed. We reach no other issue.
Pesce, P.J., Weston and Rios, ...