October 16, 2012

Delta Diagnostic Radiology, P.C. v New York Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 51953(U))

https://www.beynensonlaw.com/case-law/delta-diagnostic-radiology-p-c-v-new-york-cent-mut-fire-ins-co-2012ny-slip-op-51953u/

Court
Appellate Term, Second Department
Decided
October 16, 2012
Citation
2012 NY Slip Op 51953(U) · 37 Misc 3d 129(A)
Posture
Summary judgment
Outcome
Insurer prevailed
Issues
IME no-show
Legal questions
No-show defense: insurer's proof (see the maps)
Cite as
Delta Diagnostic Radiology, P.C. v New York Cent. Mut. Fire Ins. Co., 37 Misc 3d 129(A), 2012 NY Slip Op 51953(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012)

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Summary

Editorial summary by Beynenson Law, not part of the court’s decision.

An assignor's appearance at an IME is a condition precedent to the insurer's liability under the policy. The Civil Court limited the trial issue to whether the assignor failed to appear for scheduled IMEs. The insurer submitted an affidavit from an employee of its scheduling entity and affirmations from the physicians who were to conduct the examinations, establishing nonappearance. The provider submitted only counsel's affirmation and raised no triable issue; it also did not challenge the finding that the insurer was otherwise entitled to judgment. Following Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., the Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer summary judgment dismissing the complaint.

Reported in New York Official Reports at Delta Diagnostic Radiology, P.C. v New York Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 51953(U))

[*1]
Delta Diagnostic Radiology, P.C. v New York Cent. Mut. Fire Ins. Co.
2012 NY Slip Op 51953(U) [37 Misc 3d 129(A)]
Decided on October 16, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 October 16, 2012

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


PRESENT: : PESCE, P.J., WESTON and RIOS, JJ
2010-3199 Q C.
Delta Diagnostic Radiology, P.C. as Assignee of ALEXANDER FITZMICHAEL, Respondent, —

against

New York Central Mutual Fire Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Terrence C. O’Connor, J.), entered October 21, 2010. The order, insofar as appealed from as limited by the brief, denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, 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 moved for, among other things, summary judgment dismissing the complaint. Plaintiff cross-moved for summary judgment. By order entered October 21, 2010, the Civil Court found that the sole issue for trial was whether defendant had established that plaintiff’s assignor had failed to appear for scheduled independent medical examinations (IMEs). Defendant appeals, as limited by its brief, from so much of the order as denied its motion for summary judgment.

The appearance of an assignor at an IME is a condition precedent to the insurer’s liability on the policy (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). In support of its motion for summary judgment, defendant proffered, among other things, an affidavit of an employee of Crossland Medical Services, P.C., the entity which had scheduled the IMEs involved herein on behalf of defendant. Defendant also submitted affirmations of its doctors who were 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., 35 AD3d 720). Inasmuch as plaintiff submitted only an affirmation in opposition from its counsel, plaintiff failed to raise a triable issue of fact.

As plaintiff has not challenged the Civil Court’s finding that defendant is otherwise entitled to judgment, defendant’s motion for summary judgment dismissing the complaint is granted.

Pesce, P.J., Weston and Rios, JJ., concur. [*2]
Decision Date: October 16, 2012

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