Defendant appeals from an order of the Civil Court of the City of New York, New York County (Manuel J. Mendez, J.), dated January 5, 2009, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Manuel J. Mendez, J.), dated January 5, 2009, reversed, without costs, motion granted and complaint dismissed. The Clerk is directed to enter judgment accordingly.

Defendant-insurer made a prima facie showing of entitlement to judgment as a matter of law dismissing the complaint by establishing that it mailed the notices requiring the principal of plaintiff medical services provider to appear for an examination under oath (EUO) and that the principal failed to appear for such an examination (see generally Marina v Praetorian Ins. Co., 28 Misc 3d 132[A], 2010 NY Slip Op 51292[U] [2010]). In opposition, plaintiff failed to raise a triable issue, and its arguments in opposition to defendant's motion are unpersuasive. Defendant was not required to produce the applicable automobile insurance policy in order to establish that the mandatory personal injury endorsement included an EUO provision, since the subject claim arose out of an accident that occurred in 2007, at a time when the policy necessarily would have contained such a provision (see Eagle Chiropractic, P.C. v Chubb Indem. Ins. Co., 19 Misc 3d 129[A], 2008 NY Slip Op 50525[U]; cf. SZ Med. P.C. v State Farm Mut. Auto. Ins. Co., 9 Misc 3d 139[A], 2005 NY Slip Op 51842[U] [2005]). In any event, even assuming, arguendo, that the policy did not contain an EUO provision, the policy would be construed as though it did (see Insurance Law § 5103[h]). Moreover, contrary to Civil Court's conclusion, an EUO need not be scheduled within 30 days of defendant-insurer's receipt of the claim (see Eagle Surgical Supply Inc. v Progressive Cas. Ins. Co., 21 Misc 3d 49 [2008]). Thus, defendant was entitled to summary judgment dismissing the complaint based upon plaintiff's failure to comply with a condition precedent to coverage (see generally Inwood Hill Med., P.C. v General Assur. Co., 10 Misc 3d 18 [2005]).
[*2]THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur
Decision Date: September 17, 2010