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METRO PSYCHOLOGICAL SERVICES, P.C. A/A/O PROPHETE GREGORY, plf-res v. MERCURY CASUALTY COMPANY, def-app

15-265. METRO PSYCHOLOGICAL SERVICES, P.C. A/A/O PROPHETE GREGORY, plf-res v. MERCURY CASUALTY COMPANY, def-app — Order (Joseph E. Capella, J.), entered December 4, 2013, reversed, with $10 costs, and defendant's motion for summary judgment dismissing the complaint is granted. The Clerk is directed to enter judgment accordingly.

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15-265. METRO PSYCHOLOGICAL SERVICES, P.C. A/A/O PROPHETE GREGORY, plf-res v. MERCURY CASUALTY COMPANY, def-app — Order (Joseph E. Capella, J.), entered December 4, 2013, reversed, with $10 costs, and defendant’s motion for summary judgment dismissing the complaint is granted. The Clerk is directed to enter judgment accordingly.

The defendant insurer made a prima facie showing of entitlement to summary judgment dismissing the action for first-party no-fault benefits by establishing that it timely and properly mailed the notices for examinations under oath to plaintiff’s assignor and his attorney, and that the assignor failed to appear at the initial and follow-up EUOs (see Allstate Ins. Co. v. Pierre, 123 AD3d 618 [2014]; see also Hertz Corp. v. Active Care Med. Supply Corp., 124 AD3d 411 [2015]). While the rescheduling of the initial (April 10, 2012) EUO — by mutual agreement of the parties prior to the scheduled date — did 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 and 13th Jud Dists] [2012]), defendant established that the assignor subsequently failed to appear at the time of the rescheduled EUO (May 2, 2012) and follow-up EUO (May 21, 2012). Contrary to Civil Court’s determination, defendant’s rescheduling of the May 2, 2012 EUO upon the assignor’s failure to appear at that EUO, constituted a follow-up EUO request (see 11 NYCRR 65-3.6[b]).

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