February 6, 2007

Celtic Med. P.C. v New York Cent. Mut. Fire Ins. Co. (2007 NY Slip Op 27057)

Headnote

The relevant facts that the court considered in this case were that the defendant moved for summary judgment dismissing the complaint based on the plaintiff's assignor's failure to attend independent medical examinations (IMEs). The plaintiff argued that the defendant failed to adequately prove mailing of the IME requests, but the court found that the defendant provided sufficient proof of having mailed the IME requests. The main issue decided in this case was whether the defendant was entitled to summary judgment dismissing the action, as the plaintiff's assignor failed to appear for the IMEs, and whether the defendant's requests and follow-up requests for IMEs were mailed in accordance with the time periods prescribed by the insurance regulations. The holding of the case was that the defendant was entitled to summary judgment dismissing the complaint, as the affidavits submitted by the defendant were sufficient to establish that the IME requests and follow-up requests were mailed in accordance with the regulations, and there was no support in the record for the court's finding of a question of fact regarding the reason for the plaintiff's assignor's nonappearance at the IMEs.

Reported in New York Official Reports at Celtic Med. P.C. v New York Cent. Mut. Fire Ins. Co. (2007 NY Slip Op 27057)

Celtic Med. P.C. v New York Cent. Mut. Fire Ins. Co.

2007 NY Slip Op 27057 [15 Misc 3d 13]

Accepted for Miscellaneous Reports Publication

AT2

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected through Wednesday, April 25, 2007

[*1]

Celtic Medical P.C., as Assignee of Maria Vannesa, Respondent,
v
New York Central Mutual Fire Insurance Company, Appellant.

Supreme Court, Appellate Term, Second Department, February 6, 2007

APPEARANCES OF COUNSEL

Cambio, Votto, Cassata, & Gullo, LLP, Staten Island (Michelle S. Titone of counsel), for appellant. Baker, Sanders, Barshay, Grossman, Fass, Muhlstock & Neuwirth, LLP, Mineola (Michael C. Rosenberger of counsel), for respondent.

{**15 Misc 3d at 14} OPINION OF THE COURT

Memorandum.

Order reversed without costs, defendant’s motion for summary judgment granted and complaint dismissed.

In this action to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint based upon plaintiff’s assignor’s failure to attend duly scheduled independent medical examinations (IMEs). Plaintiff opposed the motion, arguing, inter alia, that defendant failed to adequately prove mailing of the IME requests. Although the court below found that defendant offered sufficient proof of having mailed timely IME requests and follow-up requests, it denied defendant’s motion on the ground that there was an issue of fact as to the reason for plaintiff’s assignor’s nonappearances. This appeal by defendant ensued.

In Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. (35 AD3d 720, 722 [2d Dept 2006]), the Appellate Division held that “[t]he appearance of the insured for IMEs at any time is a condition precedent to the insurer’s liability on the policy,” and that the mandatory personal injury protection endorsement (11 NYCRR 65-1.1) requires the “eligible injured person . . . [to] submit to medical examination by physicians selected by, or acceptable to, the Company, when, and as often as, the Company may reasonably require.”

Defendant contends that it was entitled to summary judgment dismissing the action [*2]because the affidavits which it submitted in support of its motion established that it sent a timely IME request and follow-up request to plaintiff’s assignor, and that plaintiff’s assignor failed to appear for the IMEs. Plaintiff argues that defendant was not entitled to summary judgment because, among other things, the affidavits submitted by defendant were insufficient to demonstrate timely mailing of said IME requests.

Contrary to plaintiff’s contentions, the affidavits submitted by defendant were sufficient to establish that defendant’s requests and follow-up requests for IMEs were mailed in accordance with the time periods prescribed by the insurance regulations (11 NYCRR 65-3.5 [b]; 65-3.6 [b]). Since plaintiff raised no issue as to the sufficiency of defendant’s proof of plaintiff’s assignor’s{**15 Misc 3d at 15} nonappearance at the IMEs, we do not pass on the propriety of the motion court’s determination with respect thereto. To the extent that the court below concluded that there was a question of fact regarding the reason for plaintiff’s assignor’s nonappearance at the IMEs, we note that there is no support in the record for such finding. Accordingly, defendant was entitled to summary judgment dismissing the complaint.

Rudolph, P.J., McCabe and Tanenbaum, JJ., concur.