November 26, 2013
Five Boro Psychological Services, P.C. as Assignee of EHIMEN INEYBENEBOR, Respondent,
Utica Mutual Ins. Co., Appellant.
PRESENT: PESCE, P.J., ALIOTTA and SOLOMON, JJ
Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered May 5, 2011. 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 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 cross motion for summary judgment dismissing the complaint.
Defendant denied the claim at issue based upon the alleged failure by plaintiff's assignor to appear at duly scheduled examinations under oath (EUOs). However, according to the affirmation submitted by defendant's counsel, the initial EUO had been rescheduled by mutual agreement, prior to the date it was to occur. A mutual rescheduling, which occurs prior to the date of the scheduled EUO, does not constitute a failure to appear (see DVS Chiropractic, P.C. v Interboro Ins. Co., 36 Misc.3d 138 [A], 2012 NY Slip Op 51443[U] [App Term, 2d, 11th & 13th Jud Dists 2012]; 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 DVS Chiropractic, P.C., 36 Misc.3d 138[A], 2012 NY Slip Op 51443[U]).
Accordingly, the order, insofar as appealed from, is affirmed.
Pesce, P.J., Aliotta and Solomon, JJ., concur.