March 28, 2012

East 75th St. Diagnostic Imaging, P.C. v New York Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 50564(U))

Headnote

The court considered the facts that the defendant had hired a company to schedule independent medical examinations (IMEs) for the purpose of determining coverage for first-party no-fault benefits. The plaintiff's assignor had failed to appear for the scheduled IMEs, leading to the defendant's denial of the claim for benefits. The main issue decided was whether the assignor's failure to comply with the scheduled IMEs constituted a breach of a condition precedent to the insurance policy, and thus relieving the insurer of liability. The holding of the court was that the appearance of the assignor at an IME was indeed a condition precedent to the insurer's liability on the policy, and as such, the defendant's motion for summary judgment dismissing the complaint was granted.

Reported in New York Official Reports at East 75th St. Diagnostic Imaging, P.C. v New York Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 50564(U))

East 75th St. Diagnostic Imaging, P.C. v New York Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 50564(U)) [*1]

East 75th St. Diagnostic Imaging, P.C. v New York Cent. Mut. Fire Ins. Co.

2012 NY Slip Op 50564(U) [35 Misc 3d 126(A)]

Decided on March 28, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 March 28, 2012

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS

PRESENT: : LaCAVA, J.P., MOLIA and IANNACCI, JJ
2011-127 N C.

East 75th Street Diagnostic Imaging, P.C. as Assignee of CARMELO POLANCO, Respondent, —
against
New York Central Mutual Fire Ins. Co., Appellant.

Appeal from an order of the District Court of Nassau County, First District (Michael A. Ciaffa, J.), dated October 5, 2010. The order denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, without 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 appeals from an order denying its motion for summary judgment dismissing the complaint.

Defendant moved for summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to comply with a condition precedent to coverage in that he did not appear for scheduled independent medical examinations (IMEs). In support of its motion, defendant submitted an affidavit by an employee of National Claims Evaluations, Inc. (NCEI), a company which defendant had hired to schedule the IMEs. The affidavit sufficiently established that the IME notices had been sent to plaintiff’s assignor in accordance with NCEI’s standard office practices and procedures (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Defendant also submitted affidavits and an affirmation by the doctors who were to perform the IMEs, which established that the assignor had failed to appear [*2]for the duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). In addition, defendant sufficiently established that the denial of claim forms had been timely mailed in accordance with defendant’s standard office practices and procedures (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123).

The appearance of the assignor at an 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 720). As plaintiff’s remaining contentions either lack merit or are improperly raised for the first time on appeal, the order of the District Court is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.

LaCava, J.P., Molia and Iannacci, JJ., concur.
Decision Date: March 28, 2012