August 31, 2012

Atlantic Radiology Imaging, P.C. v NY Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 51725(U))

Headnote

The main issue in this case was whether the insurer was liable to pay the first-party no-fault benefits to the provider, Atlantic Radiology Imaging, P.C., as assignee of Emanuel Malayev. The court considered the evidence submitted by the defendant, including an affidavit from an employee of the company responsible for scheduling independent medical examinations (IMEs), affirmations from licensed healthcare professionals who were to perform the IMEs, and an affidavit demonstrating the timely mailing of denial of claim forms. The court held that the appearance of an assignor at a duly scheduled IME is a condition precedent to the insurer's liability on the policy, and since Malayev failed to appear for the IMEs, the insurer was not liable to pay the benefits. Therefore, the court reversed the lower court's order and granted the defendant's motion for summary judgment dismissing the complaint.

Reported in New York Official Reports at Atlantic Radiology Imaging, P.C. v NY Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 51725(U))

Atlantic Radiology Imaging, P.C. v NY Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 51725(U)) [*1]

Atlantic Radiology Imaging, P.C. v NY Cent. Mut. Fire Ins. Co.

2012 NY Slip Op 51725(U) [36 Misc 3d 154(A)]

Decided on August 31, 2012

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This opinion is uncorrected and will not be published in the printed Official Reports.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 August 31, 2012

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

PRESENT: : PESCE, P.J., RIOS and ALIOTTA, JJ
2011-1286 K C.

Atlantic Radiology Imaging, P.C. as Assignee of EMANUEL MALAYEV, Respondent, —
against
NY Central Mutual Fire Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Carolyn E. Wade, J.), entered February 17, 2011. The order denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, without costs, and defendant’s motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court which denied defendant’s motion for summary judgment dismissing the complaint.

In support of its motion, defendant submitted an affidavit from an employee of the company that had been retained by defendant to schedule independent medical examinations (IMEs). The affidavit established that the IME scheduling letters had been timely mailed pursuant to the company’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 [*2]also submitted affirmations from the licensed healthcare professionals who were to perform the IMEs which established 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 employee demonstrated that the denial of claim forms had been timely mailed (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16). Since the appearance of an assignor at a duly scheduled IME is a condition precedent to the insurer’s liability on the policy (see Insurance Department Regulations [11 NYCRR] § 65-1.1; Stephen Fogel Psychological, P.C., 35 AD3d at 722), defendant’s motion for summary judgment should have been granted.

Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.

Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: August 31, 2012