March 17, 2016

Pro Health Acupuncture, P.C. v Praetorian Ins. (2016 NY Slip Op 50380(U))

Headnote

The main issue in this case was whether the defendant was entitled to summary judgment dismissing the complaint in an action by a provider to recover assigned first-party no-fault benefits. The court considered the timely submission of independent medical examination (IME) requests, the failure of the plaintiff's assignor to appear for scheduled IMEs, and the timely mailing of denial of claim forms based on nonappearance at the IMEs. The court held that the defendant had sufficiently established that the plaintiff's assignor had failed to comply with a condition precedent to coverage, and as the plaintiff failed to raise a triable issue of fact in opposition to the motion, the defendant's motion for summary judgment dismissing the complaint was granted.

Reported in New York Official Reports at Pro Health Acupuncture, P.C. v Praetorian Ins. (2016 NY Slip Op 50380(U))

Pro Health Acupuncture, P.C. v Praetorian Ins. (2016 NY Slip Op 50380(U)) [*1]

Pro Health Acupuncture, P.C. v Praetorian Ins.

2016 NY Slip Op 50380(U) [51 Misc 3d 129(A)]

Decided on March 17, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 March 17, 2016

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

PRESENT: : PESCE, P.J., ALIOTTA and ELLIOT, JJ.
2013-1360 K C

Pro Health Acupuncture, P.C. as Assignee of WILBERT DELISME, Respondent,
against
Praetorian Insurance, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Carol Ruth Feinman, J.), entered March 12, 2013. 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 which denied defendant’s motion for summary judgment dismissing the complaint.

In support of its motion, defendant submitted an affidavit by the president of Media Referral, Inc., a company that 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]). Defendant also submitted an affidavit from the medical provider who was to perform the IMEs, which sufficiently established 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 forms, which, insofar as is relevant to this appeal, denied the claims based on plaintiff’s assignor’s nonappearance at the IMEs, had been timely mailed (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123). Consequently, defendant demonstrated that plaintiff’s assignor had failed to comply with a condition precedent to coverage (see 11 NYCRR 65-1.1; Stephen Fogel Psychological, P.C., 35 AD3d at 722). As plaintiff failed to raise a triable issue of fact in opposition to the motion, the Civil Court should have granted defendant’s motion for summary judgment.

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

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

Decision Date: March 17, 2016