June 3, 2016

Great Health Care Chiropractic, P.C. v Tri State Consumers Ins. Co. (2016 NY Slip Op 50864(U))

Headnote

The court considered the motion for summary judgment by the plaintiff, who was seeking to recover first-party no-fault benefits as an assignee of Michelle Thane. The defendant cross-moved for summary judgment, arguing that the plaintiff's assignor had failed to appear for scheduled independent medical examinations (IMEs). The main issue was whether the defendant had established that the assignor had failed to appear for the IMEs, as this was a condition precedent to the insurer's liability on the policy. The court held that the affidavits submitted by the defendant were sufficient to establish that the assignor had failed to appear for the scheduled IMEs, and therefore, the plaintiff's motion for summary judgment was denied and the defendant's cross-motion was granted. The remaining contention raised by the plaintiff was not properly before the court and was declined to be considered.

Reported in New York Official Reports at Great Health Care Chiropractic, P.C. v Tri State Consumers Ins. Co. (2016 NY Slip Op 50864(U))

Great Health Care Chiropractic, P.C. v Tri State Consumers Ins. Co. (2016 NY Slip Op 50864(U)) [*1]

Great Health Care Chiropractic, P.C. v Tri State Consumers Ins. Co.

2016 NY Slip Op 50864(U) [51 Misc 3d 151(A)]

Decided on June 3, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 June 3, 2016

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-1692 Q C

Great Health Care Chiropractic, P.C., as Assignee of MICHELLE THANE, Appellant,
against
Tri State Consumers Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Jodi Orlow, J.), entered June 21, 2013. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

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

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations (IMEs). The Civil Court denied plaintiff’s motion and granted defendant’s cross motion.

On appeal, plaintiff argues that defendant failed to establish that plaintiff’s assignor had failed to appear for duly scheduled IMEs and that, as a result, plaintiff’s motion for summary judgment should have been granted and defendant’s cross motion for summary judgment dismissing the complaint should have been denied. Contrary to plaintiff’s contention, the affidavits submitted by defendant were sufficient to establish that plaintiff’s assignor had failed to appear for the duly scheduled IMEs. An assignor’s appearance at an IME “is a condition precedent to the insurer’s liability on the policy” (Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 722 [2006]).

We note that plaintiff’s remaining contention is not properly before this court, as this argument is being raised for the first time on appeal, and we decline to consider it (see Joe v Upper Room Ministries, Inc., 88 AD3d 963 [2011]; Gulf Ins. Co. v Kanen, 13 AD3d 579 [2004]).

Accordingly, the order is affirmed.

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

Decision Date: June 03, 2016