Longevity Med. Supply, Inc. v Praetorian Ins. Co. (2015 NY Slip Op 50393(U))

Appeal from an order of the Civil Court of the City of New York, Queens County (Barry A. Schwartz, J.), entered August 17, 2012. The order, insofar as appealed from, denied plaintiff’s motion for summary judgment and granted the branch of defendant’s cross motion seeking summary judgment dismissing plaintiff’s second cause of action.

ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs, and, upon searching the record, summary judgment is awarded to defendant dismissing plaintiff’s first cause of action.

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. The Civil Court denied plaintiff’s motion, granted the branch of defendant’s cross motion seeking summary judgment dismissing plaintiff’s second cause of action and, with respect to plaintiff’s first cause of action, found that there was an issue of fact as to whether plaintiff had provided the verification which defendant had requested.

In support of the branch of its cross motion seeking summary judgment dismissing the second cause of action, defendant submitted an affidavit by the president of Media Referral, Inc., which had been retained by defendant to schedule independent medical examinations (IMEs), which affidavit sufficiently established that the IME requests had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Defendant also submitted, among other things, affirmations and an affidavit from the medical providers who were to perform the IMEs, which were sufficient to establish that plaintiff’s assignor had failed to appear for those duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). In addition, an affidavit executed by defendant’s claims examiner demonstrated that the denial of claim form, which denied this claim based on plaintiff’s assignor’s nonappearance at the IMEs, had been timely mailed (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16). Since an assignor’s appearance at an IME is a condition precedent to an insurer’s liability on a policy (see 11 NYCRR 65-1.1; Stephen Fogel Psychological, P.C., 35 AD3d 720), the court properly granted the branch of defendant’s cross motion seeking summary judgment dismissing plaintiff’s second cause of action.

Plaintiff’s contention that it is entitled to summary judgment upon its first cause of action lacks merit. While defendant argued that it was entitled to summary judgment dismissing this cause of action because plaintiff had failed to provide requested verification, the Civil Court found that there was an issue of fact as to whether plaintiff had responded to defendant’s verification requests. However, we need not reach this issue since, as noted above, the record establishes that plaintiff’s assignor failed to appear for duly scheduled IMEs, and, thus, on that ground, defendant is likewise entitled to summary judgment dismissing plaintiff’s first cause of action (Stephen Fogel Psychological, P.C., 35 AD3d 720). As this appellate court has the power [*2]to search the record on this appeal by plaintiff and to award summary judgment to the nonappealing defendant (see Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106 [1984]), upon searching the record, we award summary judgment to defendant dismissing plaintiff’s first cause of action (Stephen Fogel Psychological, P.C., 35 AD3d 720).

Accordingly, the order, insofar as appealed from, is affirmed and, upon a search of the record, summary judgment is awarded to defendant dismissing plaintiff’s first cause of action.

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