May 23, 2011

All Borough Group Med. Supply, Inc. v Utica Mut. Ins. Co. (2011 NY Slip Op 50949(U))

Headnote

The relevant facts considered in this case were that the defendant, Utica Mutual Insurance Company, had denied the plaintiff's claim for first-party no-fault benefits based on the assignor's failure to attend independent medical examinations (IMEs) scheduled by Hudson Valley Medical Consultants (HVMC). The defendant submitted affidavits from an employee of HVMC and the office manager of the psychologist who was to perform the IMEs, which established that the IME requests had been timely mailed and that the plaintiff's assignor had failed to appear for the scheduled IMEs. The main issue decided was whether the defendant had properly denied the plaintiff's claim based on the assignor's failure to satisfy a condition precedent to coverage. The court held that since the assignor's appearance at an IME is a condition precedent to the insurer's liability on the policy, the defendant was not precluded from raising the issue and properly denied the claim, affirming the Civil Court's order granting defendant's motion for summary judgment dismissing the complaint.

Reported in New York Official Reports at All Borough Group Med. Supply, Inc. v Utica Mut. Ins. Co. (2011 NY Slip Op 50949(U))

All Borough Group Med. Supply, Inc. v Utica Mut. Ins. Co. (2011 NY Slip Op 50949(U)) [*1]
All Borough Group Med. Supply, Inc. v Utica Mut. Ins. Co.
2011 NY Slip Op 50949(U) [31 Misc 3d 146(A)]
Decided on May 23, 2011
Appellate Term, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
Decided on May 23, 2011

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS


PRESENT: : WESTON, J.P., GOLIA and RIOS, JJ
2010-254 K C.
All Borough Group Medical Supply, Inc. as Assignee of SONIA JOCELYN, Appellant,

against

Utica Mutual Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Peter Paul Sweeney, J.), entered October 2, 2009. The order granted defendant’s 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 defendant’s motion for summary judgment dismissing the complaint, which motion was based upon, among other things, plaintiff’s assignor’s failure to attend independent medical examinations (IMEs), which had been scheduled by Hudson Valley Medical Consultants (HVMC).

In support of its motion, defendant submitted an affidavit of an employee of HVMC which sufficiently established that the IME requests had been timely mailed in accordance with HVMC’s standard office practices and procedures (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]). Defendant also submitted an affidavit of an employee of the office manager of the psychologist who was to perform the IMEs, which was sufficient to establish that plaintiff’s assignor had failed to appear for the duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). In addition, an affidavit executed by defendant’s no-fault specialist demonstrated that the claim denial forms, based on plaintiff’s assignor’s nonappearance at the IMEs, had been timely mailed pursuant to defendant’s standard office practices and procedures (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 [*2]Misc 3d 16). Since an assignor’s appearance at an IME “is a condition precedent to the insurer’s liability on the policy” (Stephen Fogel Psychological, P.C., 35 AD3d at 722; see also Insurance Department Regulations [11 NYCRR] § 65-1.1), defendant properly denied plaintiff’s claim based upon the assignor’s failure to satisfy a condition precedent to coverage and, thus, was not precluded from raising such issue (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2d Dept 2009]; but see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, ___ AD3d ___, 2011 NY Slip Op 01948 [1st Dept 2011]). Accordingly, the Civil Court’s order granting defendant’s motion for summary judgment dismissing the complaint is affirmed. In light of our determination, we need not reach the remaining contentions raised on appeal.

Weston, J.P., Golia and Rios, JJ., concur.
Decision Date: May 23, 2011