March 23, 2016

Delta Diagnostic Radiology, P.C. v Kemper Ins. Co. (2016 NY Slip Op 50396(U))

Headnote

The court considered the case of Delta Diagnostic Radiology, P.C. as Assignee of NOEL JUNIOR, appealing an order from the Civil Court of New York, which granted the defendant's motion for summary judgment and denied the plaintiff's cross motion for summary judgment. The main issue decided was whether the affidavits submitted by the defendant were sufficient to establish that the plaintiff's assignor had failed to appear for duly scheduled independent medical examinations (IMEs). The holding of the court was that since the assignor's appearance at an IME is a condition precedent to the insurer's liability on the policy, and in opposition to defendant's motion, the plaintiff did not raise a triable issue of fact, the order was affirmed.

Reported in New York Official Reports at Delta Diagnostic Radiology, P.C. v Kemper Ins. Co. (2016 NY Slip Op 50396(U))

Delta Diagnostic Radiology, P.C. v Kemper Ins. Co. (2016 NY Slip Op 50396(U)) [*1]

Delta Diagnostic Radiology, P.C. v Kemper Ins. Co.

2016 NY Slip Op 50396(U) [51 Misc 3d 130(A)]

Decided on March 23, 2016

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This opinion is uncorrected and will not be published in the printed Official Reports.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 23, 2016

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

PRESENT: : PESCE, P.J., ALIOTTA and ELLIOT, JJ.
&em;

Delta Diagnostic Radiology, P.C. as Assignee of NOEL JUNIOR, Appellant,
against
Kemper Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Maureen A. Healy, J.), entered April 22, 2013. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

ORDERED that the order is affirmed, with $25 costs.

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

Contrary to plaintiff’s sole argument on appeal with respect to the merits of defendant’s motion, the affidavits submitted by defendant were sufficient to establish that plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations (IMEs) (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Since an assignor’s appearance at an IME “is a condition precedent to the insurer’s liability on the policy” (id. at 722) and, in opposition to defendant’s motion, plaintiff did not raise a triable issue of fact, the order is affirmed.

Pesce, P.J., Aliotta and Elliot, JJ., concur.

Decision Date: March 23, 2016