Opinion
2008-2094 Q C.
Decided March 10, 2010.
Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered August 20, 2008. The order, insofar as appealed from as limited by the brief, granted plaintiff's motion for summary judgment on its first cause of action and denied defendant's cross motion seeking summary judgment dismissing the first cause of action.
ORDERED that the order, insofar as appealed from, is affirmed without costs.
PRESENT: PESCE, P.J., WESTON and STEINHARDT, JJ.
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 dismissing the complaint. Insofar as is relevant to this appeal, the Civil Court granted plaintiff summary judgment on its first cause of action, finding that defendant had failed to properly toll its time to pay or deny the subject bills. On appeal, defendant argues that its cross motion for summary judgment should have been granted to the extent that it sought dismissal of plaintiff's first cause of action, because defendant had timely and properly denied the subject bills on the ground that plaintiff had failed to appear for an examination under oath (EUO).
While defendant properly argues that an EUO need not be scheduled to be held within 30 days of the receipt of the claim form ( see Eagle Surgical Supply, Inc. v Progressive Cas. Ins. Co. , 21 Misc 3d 49 [App Term, 2d 11th Jud Dists 2008]), defendant nevertheless failed to demonstrate that the EUO scheduling letters were timely mailed. Defendant admits that it received the three subject bills on October 27, 2006. As the EUO scheduling letters were mailed on December 18, 2006, 52 days after receipt of the bills, they were untimely and did not toll defendant's time to pay or deny those bills ( see Insurance Department Regulations [ 11 NYCRR] § 65-3.5 [b]; § 65-3.6 [b]; § 65-3.8 [j]; see also Eagle Surgical Supply, Inc., 21 Misc 3d at 51).
Accordingly, the Civil Court properly found that defendant had failed to demonstrate that it had properly tolled its time to pay or deny the subject bills and that, therefore, defendant had failed to raise a triable issue of fact. As a result, the order, insofar as appealed from, is affirmed.
Pesce, P.J., Weston and Steinhardt, JJ., concur.