August 31, 2012

Brooklyn Hgts. Physical Therapy, P.C. v Liberty Mut. Fire Ins. Co. (2012 NY Slip Op 51712(U))

Headnote

The relevant facts considered by the court in this case were that a physical therapy provider was seeking to recover assigned first-party no-fault benefits from an insurance company. The insurance company had scheduled independent medical examinations (IMEs) for the plaintiff's assignor, but the assignor failed to appear for the IMEs. The insurance company timely mailed the IME scheduling letters and denial of claim forms. The main issue decided by the court was whether the insurance company had met the condition precedent to its liability on the policy by scheduling the IMEs and mailing the denial of claim forms in a timely manner. The holding of the court was that the insurance company had raised a triable issue of fact by demonstrating that it had timely mailed the IME scheduling letters and denial of claim forms, and that the plaintiff's assignor had failed to appear for the IMEs. Therefore, the branches of the plaintiff's motion seeking summary judgment on the causes of action based on the assignor's nonappearance at the IMEs should have been denied. The judgment in favor of the plaintiff was reversed, and the branches of the plaintiff's motion seeking summary judgment on the causes of action were denied.

Reported in New York Official Reports at Brooklyn Hgts. Physical Therapy, P.C. v Liberty Mut. Fire Ins. Co. (2012 NY Slip Op 51712(U))

Brooklyn Hgts. Physical Therapy, P.C. v Liberty Mut. Fire Ins. Co. (2012 NY Slip Op 51712(U)) [*1]

Brooklyn Hgts. Physical Therapy, P.C. v Liberty Mut. Fire Ins. Co.

2012 NY Slip Op 51712(U) [36 Misc 3d 153(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This opinion is uncorrected and will not be published in the printed Official Reports.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
2011-241 Q C.

Brooklyn Heights Physical Therapy, P.C. as Assignee of LUIS ABREU, Respondent, —
against
Liberty Mutual Fire Ins. Co., Appellant.

Appeal from a judgment of the Civil Court of the City of New York, Queens County (Rudolph E. Greco, Jr., J.), entered December 17, 2010. The judgment, entered pursuant to so much of an order of the same court dated November 19, 2010 as granted the branches of plaintiff’s motion seeking summary judgment on the fifth through tenth causes of action, awarded plaintiff the principal sum of $3,519.08.

ORDERED that the judgment is reversed, without costs, so much of the order dated November 19, 2010 as granted the branches of plaintiff’s motion seeking summary judgment on the fifth through tenth causes of action is vacated, and those branches of plaintiff’s motion are denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from a judgment of the Civil Court in favor of plaintiff in the principal sum of $3,519.08, entered pursuant to so much of an order dated November 19, 2010 as granted the branches of plaintiff’s motion seeking summary judgment on the fifth through tenth causes of action.

In opposition to plaintiff’s motion, defendant submitted an affidavit from an employee of the company that had been retained by defendant to schedule independent medical examinations [*2](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 also submitted affirmations from the doctor who was 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 claim specialist demonstrated that the denial of claim forms, which denied plaintiff’s claims comprising the fifth through tenth causes of action based on plaintiff’s assignor’s nonappearance at the IMEs, 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 raised a triable issue of fact and the branches of plaintiff’s motion seeking summary judgment on the fifth through tenth causes of action should have been denied.

Accordingly, the judgment is reversed, so much of the order dated November 19, 2010 as granted the branches of plaintiff’s motion seeking summary judgment on the fifth through tenth causes of action is vacated, and those branches of plaintiff’s motion are denied.

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