June 25, 2012

Dowd v Praetorian Ins. Co. (2012 NY Slip Op 51160(U))

Headnote

The relevant facts considered by the court were that the defendant-insurer timely and properly mailed notices regarding independent medical examinations (IMEs) and examinations under oath (EUOs) to the plaintiff's assignor, who then failed to appear for these examinations. The main issue decided by the court was whether the defendant had made a prima facie showing of entitlement to summary judgment dismissing the action for first-party no-fault benefits. The court held that the defendant-insurer had indeed made a prima facie showing, as the plaintiff did not specifically deny the assignor's nonappearance or raise a triable issue with respect to the mailing or reasonableness of the underlying notices. Therefore, the court reversed the order of the Civil Court, granted the defendant's motion for summary judgment, and dismissed the complaint.

Reported in New York Official Reports at Dowd v Praetorian Ins. Co. (2012 NY Slip Op 51160(U))

Dowd v Praetorian Ins. Co. (2012 NY Slip Op 51160(U)) [*1]

Dowd v Praetorian Ins. Co.

2012 NY Slip Op 51160(U) [36 Misc 3d 126(A)]

Decided on June 25, 2012

Appellate Term, First 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This opinion is uncorrected and will not be published in the printed Official Reports.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 June 25, 2012

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

PRESENT: Shulman, J.P., Hunter, Jr., Torres, JJ
570131/12.

Andrew Dowd, M.D., a/a/o Ruby Adesanya, Plaintiff-Respondent, – –
against
Praetorian Insurance Company, Defendant-Appellant.

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Ben R. Barbato, J.), entered October 3, 2011, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Ben R. Barbato, J.), entered October 3, 2011, reversed, with $10 costs, motion granted and complaint dismissed. The Clerk is directed to enter judgment accordingly.

The defendant-insurer made a prima facie showing of entitlement to summary judgment dismissing the action for first-party no-fault benefits by establishing that it timely and properly mailed the notices for independent medical examinations (IMEs) and examinations under oath (EUOs) to plaintiff’s assignor, and that the assignor failed to appear (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [2011]; cf. Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]). In opposition, plaintiff did not specifically deny the assignor’s nonappearance or otherwise raise a triable issue with respect thereto, or as to the mailing or reasonableness of the underlying notices (see Unitrin at 560).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: June 25, 2012