Appeal from an order of the Civil Court of the City of New York, Kings County (Genine D. Edwards, J.), entered June 9, 2011, deemed from a judgment of the same court entered August 1, 2011 (see CPLR 5501 [c]). The judgment, entered pursuant to the June 9, 2011 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 $2,330.56.

ORDERED that the judgment 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 ground that it had timely denied plaintiff's claims based on plaintiff's failure to appear at two scheduled examinations under oath (EUOs). The Civil Court granted plaintiff's motion and denied defendant's cross motion. This appeal by defendant ensued. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]). [*2]

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.

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 St. Vincent Med. Care, P.C. v Travelers Ins. Co., 26 Misc 3d 144[A], 2010 NY Slip Op 50446[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; 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 had been timely mailed (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Defendant admits that it received the bills in question on January 11 and January 18, 2010, respectively. As the EUO scheduling letters were mailed on April 8, 2010, more than 70 days after the 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 judgment is affirmed.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: July 01, 2013