Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered August 19, 2009. The order denied defendant's motion to compel plaintiff to produce Richard Berardi, D.O., and Gracia Mayard, M.D., for examinations before trial and granted plaintiff's cross motion for summary judgment

ORDERED that the order is reversed, with $30 costs, defendant's motion to compel is granted to the extent of compelling plaintiff to produce Richard Berardi, D.O., and Gracia Mayard, M.D., for examinations before trial solely with respect to the issue of plaintiff's billing practices and plaintiff's cross motion for summary judgment is denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved to compel plaintiff to produce Richard Berardi, D.O., and Gracia Mayard, M.D., two of plaintiff's principals, for examinations before trial (EBTs), regarding plaintiff's "treatment" and "billing practices," and plaintiff cross-moved for summary judgment. Defendant opposed plaintiff's cross motion, arguing that it had timely denied plaintiff's claims on the ground that Drs. Berardi and Mayard had failed to appear for examinations under oath (EUOs). The Civil Court denied defendant's motion and granted plaintiff's cross motion, finding that plaintiff had [*2]established its prima facie case and that defendant had failed to establish that its initial and follow-up EUO requests had been timely and properly mailed.

With respect to plaintiff's cross motion for summary judgment, since defendant raises no issue on appeal with regard to plaintiff's establishment of its prima facie case, we do not pass upon the propriety of the Civil Court's determination with respect thereto (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; ARCO Med. NY, P.C. v Lancer Ins. Co., 34 Misc 3d 135[A], 2011 NY Slip Op 52384[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; ARCO Med. NY, P.C. v Lancer Ins. Co., 34 Misc 3d 135[A], 2011 NY Slip Op 52382[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). However, in opposition to plaintiff's motion, defendant established 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]; Arco Med. NY, P.C., 34 Misc 3d 135[A], 2011 NY Slip Op 52384[U]), that Drs. Berardi and Mayard had failed to appear for the EUOs (see ARCO Med. NY, P.C., 35 Misc 3d 135[A], 2011 NY Slip Op 52384[U]; W & Z Acupuncture, P.C. v Amex Assur. Co., 24 Misc 3d 142[A], 2009 NY Slip Op 51732[U] [App Term, 2d, 11th & 13th Jud Dists 2009]) and that the claim had been denied on April 11, 2007 on that ground (see St. Vincent's Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16; see also Insurance Department Regulations [11 NYCRR] § 65-3.8 [j]; Nyack Hosp. v General Motors Acceptance Corp., 8 NY3d 294, 300-301 [2007]). Although the follow-up request was sent less than 30 days after the initial request (see Insurance Department Regulations [11 NYCRR] § 65-3.6 [b]), where, as here, the verification sought is an EUO, a follow-up request is not premature when sent within 10 days of the failure to appear for the initial scheduled examination (see ARCO Med., NY, P.C. v Lancer Ins. Co., 34 Misc 3d 135[A], 2011 NY Slip Op 52384[U]).

Consequently, as defendant is not precluded from interposing its defense that plaintiff had failed to comply with a condition precedent to coverage (see Insurance Department Regulations [11 NYCRR] § 65-1.1; Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; ARCO Med. NY, P.C., 34 Misc 3d 135[A], 2011 NY Slip Op 52384[U]; W & Z Acupuncture, P.C., 24 Misc 3d 142[A], 2009 NY Slip Op 51732[U]), plaintiff's cross motion for summary judgment is denied.

With respect to defendant's motion to compel plaintiff to produce Drs. Berardi and Mayard for EBTs, a review of the record indicates that defendant preserved its "billing practices" defense by checking box 18 on the NF-10 denial of claim form to assert that plaintiff's "fees [were] not in accordance with the fee schedule." However, as defendant's denial of claim form did not raise any defense based on "treatment," defendant is precluded from raising that defense (see e.g. Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556 [2008]). In view of the foregoing, and as defendant established that it had served an EBT notice and that plaintiff had failed to produce Drs. Berardi and Mayard for EBTs, defendant's motion to compel is granted to the extent of compelling plaintiff to produce Drs. Berardi and Mayard for EBTs solely with respect to the issue of plaintiff's billing practices (see Philip v Monarch Knitting Mach. Corp., 169 AD2d 603, 604 [1991]; Blessin v Greenberg, 89 AD2d 862 [1982]).

Accordingly, the order is reversed, defendant's motion to compel is granted to the extent indicated and plaintiff's cross motion for summary judgment is denied. [*3]

Rios, J.P., Aliotta and Solomon, JJ., concur.
Decision Date: November 26, 2012