July 21, 2017

Elmont Rehab P.T., P.C. v New York Cent. Mut. Fire Ins. Co. (2017 NY Slip Op 50961(U))

Headnote

The court considered the fact that the defendant had scheduled an initial and follow-up independent medical examination (IME) for the plaintiff's assignor, which the assignor failed to appear for. The main issue decided was whether the failure to appear for the scheduled IMEs constituted a failure to comply with a condition precedent to coverage, and whether the defendant had timely denied the claims on that ground. The holding of the case was that the defendant was entitled to summary judgment dismissing the complaint, as the plaintiff had failed to comply with a condition precedent to coverage, and the defendant had timely denied the claims on that ground. Therefore, the court reversed the order and granted the defendant's motion for summary judgment dismissing the complaint.

Reported in New York Official Reports at Elmont Rehab P.T., P.C. v New York Cent. Mut. Fire Ins. Co. (2017 NY Slip Op 50961(U))

Elmont Rehab P.T., P.C. v New York Cent. Mut. Fire Ins. Co. (2017 NY Slip Op 50961(U)) [*1]

Elmont Rehab P.T., P.C. v New York Cent. Mut. Fire Ins. Co.

2017 NY Slip Op 50961(U) [56 Misc 3d 135(A)]

Decided on July 21, 2017

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This opinion is uncorrected and will not be published in the printed Official Reports.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 July 21, 2017

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

PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2015-457 K C

Elmont Rehab P.T., P.C., as Assignee of Gamero, Alfredo, Respondent,
against
New York Central Mutual Fire Insurance Company, Appellant.

Gullo & Associates, LLP ( Natalie Socorro, Esq.), for appellant. The Rybak Firm, PLLC ( Damin J. Toell, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Harriet L. Thompson, J.), entered April 11, 2014. The order denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order 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 appeals from an order of the Civil Court denying defendant’s motion which sought summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations (IMEs).

In support of its motion, defendant established that, before receiving the claims at issue, it had mailed letters scheduling an initial and follow-up IME to plaintiff’s assignor (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Defendant also established that the 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]). Thus, defendant demonstrated that plaintiff had failed to comply with a condition precedent to coverage (id. at 722). As defendant’s moving papers established that defendant had timely denied (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123) the claims on that ground, and plaintiff failed to raise a triable issue of fact in opposition to defendant’s motion, defendant was entitled to summary judgment dismissing the complaint.

Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.

PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: July 21, 2017