Actual Chiropractic, P.C. v A. Cent. Ins. Co. (2016 NY Slip Op 50397(U))

Decided on March 23, 2016

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Carolyn E. Wade, J.), entered February 15, 2013. The order denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved to dismiss the complaint on the ground that it had timely and properly denied the claim at issue based upon plaintiff’s assignor’s failure to appear for duly scheduled independent medical examinations (IMEs). The Civil Court denied defendant’s motion.

Defendant’s motion papers failed to establish as a matter of law that the letters scheduling the IMEs of plaintiff’s assignor had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Consequently, defendant failed to demonstrate that the IMEs had been properly scheduled and, thus, that it is entitled to summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to comply with a condition precedent to an insurer’s liability on a policy (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).

Accordingly, the order is affirmed.

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