July 21, 2010
Marina v Praetorian Ins. Co. (2010 NY Slip Op 51292(U))
Headnote
Reported in New York Official Reports at Marina v Praetorian Ins. Co. (2010 NY Slip Op 51292(U))
Marina v Praetorian Ins. Co. |
2010 NY Slip Op 51292(U) [28 Misc 3d 132(A)] |
Decided on July 21, 2010 |
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This opinion is uncorrected and will not be published in the printed Official Reports. |
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Shulman, Hunter, Jr., JJ
570206/10.
against
Praetorian Insurance Company, Defendant-Appellant.
Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Mitchell J. Danziger, J.), dated April 28, 2009, which denied its motion for summary judgment dismissing the complaint.
Per Curiam.
Order (Mitchell J. Danziger, J.), dated April 28, 2009, reversed, with $10 costs, motion granted and complaint dismissed. The Clerk is directed to enter judgment accordingly.
In this action to recover assigned first-party no-fault benefits, defendant established prima
facie that it mailed the notices of the independent medical examinations (IMEs) to the assignors
and that the assignors failed to appear for the IMEs (Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35
AD3d 720, 721 [2006]). In opposition, plaintiff failed to raise a triable issue regarding the
reasonableness of the requests or the assignors’ failure to attend the IMEs (see Inwood Hill Med. v General Assurance
Co., 10 Misc 3d 18, 20 [2005]). Thus, defendant was entitled to summary judgment
dismissing the complaint based upon plaintiff’s failure to comply with a condition precedent to
coverage (see id.).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur
Decision Date: July 21, 2010