December 22, 2017

Bronx Acupuncture Therapy, P.C. v A. Cent. Ins. Co. (2017 NY Slip Op 51870(U))

Headnote

The main issue in this case was whether the defendant was entitled to summary judgment dismissing the complaint from the plaintiff, Bronx Acupuncture Therapy, P.C., for failure to comply with a condition precedent to coverage. The defendant had argued that the plaintiff's assignor had failed to appear for independently medical examinations (IMEs), which was a requirement under the insurance policy. The court considered the affidavit submitted by the operations manager of Transcion Medical, P.C., which had been retained by the defendant to schedule IMEs, establishing that the scheduling letters had been timely mailed. The court found that the defendant had demonstrated that the plaintiff had failed to comply with the condition precedent to coverage, and as there was no triable issue of fact raised by the plaintiff in opposition to the motion, the defendant was entitled to summary judgment. The holding of the case was that the order denying the defendant's motion for summary judgment was reversed, and the defendant's motion for summary judgment dismissing the complaint was granted.

Reported in New York Official Reports at Bronx Acupuncture Therapy, P.C. v A. Cent. Ins. Co. (2017 NY Slip Op 51870(U))

Bronx Acupuncture Therapy, P.C. v A. Cent. Ins. Co. (2017 NY Slip Op 51870(U)) [*1]

Bronx Acupuncture Therapy, P.C. v A. Cent. Ins. Co.

2017 NY Slip Op 51870(U) [58 Misc 3d 141(A)]

Decided on December 22, 2017

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This opinion is uncorrected and will not be published in the printed Official Reports.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 December 22, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2015-965 K C

Bronx Acupuncture Therapy, P.C., as Assignee of Rafael Uribe, Respondent,
against
A. Central Ins. Co., Appellant.

Gullo & Associates, LLC (Natalie Socorro, Esq.), for appellant. Gary Tsirelman, P.C. (Stephen Gurfinkel, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Theresa M. Ciccotto, J.), entered January 8, 2015. The order denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, with $30 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 denying defendant’s motion which sought summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations (IMEs).

In support of its motion, defendant submitted an affidavit by the operations manager of Transcion Medical, P.C., which had been retained by defendant to schedule IMEs, which affidavit sufficiently established that the IME scheduling letters had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Defendant also established that the 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]). Thus, defendant demonstrated that plaintiff had failed to comply with a condition precedent to coverage (id. at 722). As defendant’s moving papers established that defendant had timely denied (see St. [*2]Vincent’s Hosp. of Richmond, 50 AD3d 1123) the claims on that ground, and plaintiff failed to raise a triable issue of fact in opposition to defendant’s motion, defendant was entitled to summary judgment dismissing the complaint.

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

PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 22, 2017