Appeal from an order of the Civil Court of the City of New York, Kings County (Devin P. Cohen, J.), entered January 29, 2013. The order granted plaintiff's motion for summary judgment and denied defendant's cross motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court granted plaintiff's motion for summary judgment, and denied defendant's cross motion for summary judgment dismissing the complaint on the ground that plaintiff's assignor had failed to appear for duly scheduled examinations under oath (EUOs).

Inasmuch as defendant raises no issue on appeal with respect to plaintiff's prima facie case, we do not pass upon the propriety of the Civil Court's determination with respect thereto.

In opposition to plaintiff's motion and in support of defendant's cross motion for summary judgment dismissing the complaint, defendant annexed a sworn stenographic transcript which showed that plaintiff's assignor had failed to appear for the second scheduled EUO. However, defendant failed to demonstrate, by proof in admissible form, that plaintiff's assignor had failed to appear for the first duly scheduled EUO. As a result, defendant failed to establish its defense that plaintiff's assignor had failed to appear for duly scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; see also New Way Med. Supply Corp. v MVAIC, 46 Misc 3d 129[A], 2014 NY Slip Op 51805[U] [App Term, 2d, 11th & 13th Jud Dists 2014]).

Accordingly, the order is affirmed.

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Decision Date: November 19, 2015