Alrof, Inc. v Nationwide Ins. Co. (2011 NY Slip Op 51451(U))

SUPREME COURT OF THE STATE OF NEW YORK

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

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered December 10, 2009, deemed from a judgment of the same court entered December 28, 2009 (see CPLR 5512 [a]; Neuman v Otto, 114 AD2d 791 [1985]). The judgment, entered pursuant to the December 10, 2009 order granting the branches of plaintiff’s motion seeking summary judgment with respect to plaintiff’s second and third cause of action and so much of the first cause of action as sought to recover the principal sum of $59.96, and granting defendant’s cross motion for summary judgment dismissing the complaint only with respect to the remainder of plaintiff’s first cause of action, awarded plaintiff the principal sum of $1,777.96.

ORDERED that the judgment is reversed, without costs, so much of the order entered December 10, 2009 as granted the branches of plaintiff’s motion seeking summary judgment upon its second and third causes of action and upon the portion of its first cause of action that sought to recover the principal sum of $59.96, and as granted defendant’s cross motion for summary judgment dismissing the complaint only with respect to the remainder of plaintiff’s first cause of action is vacated, plaintiff’s motion for summary judgment is denied in its entirety and defendant’s cross motion for summary judgment dismissing the complaint is granted in its entirety.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint. The Civil Court awarded plaintiff summary judgment upon its second and third causes of action, and, upon the first cause of action, awarded plaintiff only the sum of $59.96. [*2]The Civil Court also granted only so much of defendant’s cross motion for summary judgment as sought to dismiss the remainder of plaintiff’s first cause of action. We deem defendant’s appeal from the order to be from the judgment entered pursuant to the order (see CPLR 5512 [a]; Neuman v Otto, 114 AD2d 791 [1985]).

In support of its cross motion, defendant submitted an affidavit of an employee of the corporation which had mailed independent medical examination (IME) scheduling letters on defendant’s behalf, which sufficiently established that IME requests had been timely mailed in accordance with that corporation’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 from the receptionist of the doctor 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, affidavits executed by defendant’s employees 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 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 is entitled to summary judgment dismissing plaintiff’s second and third causes of action (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, 82 AD3d 559 [1st Dept 2011]).

While the court awarded plaintiff the sum of $59.96 upon its first cause of action and dismissed the remaining portion of this cause of action based upon the workers’ compensation fee schedule, since the record demonstrates that defendant had previously timely paid this amount to plaintiff (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16), defendant was entitled to summary judgment dismissing this portion of plaintiff’s first cause of action.

Accordingly, the judgment is reversed, so much of the order as granted the branches of plaintiff’s motion seeking summary judgment upon its second and third causes of action and upon the portion of its first cause that sought to recover the sum of $59.96, and as granted defendant’s cross motion for summary judgment dismissing the complaint only with respect to the remainder of plaintiff’s first cause of action is vacated, plaintiff’s motion for summary judgment is denied in its entirety and defendant’s cross motion for summary judgment dismissing the complaint is granted in its entirety.

Pesce, P.J., Golia and Steinhardt, JJ., concur.
Decision Date: July 28, 2011