March 17, 2014

Clinton Place Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2014 NY Slip Op 50472(U))

Headnote

The relevant facts considered by the court were that the plaintiff, Clinton Place Medical, P.C., was seeking first-party no-fault benefits from defendant New York Central Mutual Fire Insurance Company. The defendant had denied the claim based on the assignor's failure to appear for independent medical examinations (IMEs), and had timely denied the claim forms. The main issues decided by the court were whether the defendant had met the conditions for its liability on the policy by timely mailing IME scheduling letters and denying claim forms, and whether the failure to appear for IMEs by the assignor would preclude the defendant's liability if the claims had been timely denied. The holding of the court was that the defendant's motion for summary judgment dismissing the plaintiff's first through fourth causes of action was granted, as defendant had met the conditions precedent to its liability. However, the branches of defendant's motion seeking summary judgment dismissing the fifth through ninth causes of action were properly denied, as it had not been established that these claims had been timely denied.

Reported in New York Official Reports at Clinton Place Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2014 NY Slip Op 50472(U))

Clinton Place Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2014 NY Slip Op 50472(U)) [*1]

Clinton Place Med., P.C. v New York Cent. Mut. Fire Ins. Co.

2014 NY Slip Op 50472(U) [43 Misc 3d 127(A)]

Decided on March 17, 2014

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This opinion is uncorrected and will not be published in the printed Official Reports.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 March 17, 2014

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ
.

Clinton Place Medical, P.C. as Assignee of MIGUEL NUNEZ, Respondent,
against
New York Central Mutual Fire Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered January 12, 2012. The order denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that the branches of defendant’s motion seeking summary judgment dismissing plaintiff’s first through fourth causes of action are granted; as so modified, the order is affirmed, without costs.

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 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 also submitted an affidavit from the chiropractor who was to perform the IMEs, which affidavit 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, an affidavit executed by defendant’s employee demonstrated that the denial of claim forms with respect to the claims at issue in plaintiff’s first through fourth causes of action 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), the branches of defendant’s motion seeking summary judgment dismissing these causes of action should have been granted.

With respect to the claims at issue in plaintiff’s fifth through ninth causes of action, the affidavit of defendant’s employee did not establish, as a matter of law, that these claims had been timely denied. Contrary to defendant’s contention, defendant’s defense based upon the assignor’s failure to appear for IMEs is subject to preclusion if defendant failed to timely deny these claims (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2d Dept 2009], lv denied 13 NY3d 714 [2009] see also Eastern Star Acupuncture, P.C. v American Tr. Ins. Co., 33 Misc 3d 141[A], 2011 NY Slip Op 52205[U] [App Term, 2d, 11th & 13th Jud Dists 2011] but see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559 [1st Dept 2011], lv denied 17 NY3d 705 [2011]). As a result, the Civil Court properly denied the branches of [*2]defendant’s motion seeking summary judgment dismissing the fifth through ninth causes of action.

Accordingly, the order is modified by providing that the branches of defendant’s motion seeking summary judgment dismissing plaintiff’s first through fourth causes of action are granted.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: March 17, 2014