Tong Li v Praetorian Ins. Co. (2015 NY Slip Op 50397(U))

Appeal from an order of the Civil Court of the City of New York, Queens County (Joseph E. Capella, J.), entered May 14, 2012, deemed from a judgment of the same court entered September 24, 2012 (see CPLR 5501 [c]). The judgment, entered pursuant to the May 14, 2012 order denying defendant’s motion for summary judgment dismissing the complaint and granting plaintiff’s cross motion for summary judgment, awarded plaintiff the principal sum of $3,282.32.

ORDERED that the judgment is reversed, with $30 costs, so much of the order entered May 14, 2012 as granted plaintiff’s cross motion for summary judgment is vacated, and plaintiff’s cross motion for summary judgment is denied.

In support of its motion for summary judgment dismissing the complaint, 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 forms, which denied these 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; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16). Since 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), defendant established its prima facie entitlement to summary judgment dismissing the complaint.

In plaintiff’s papers submitted in opposition to defendant’s motion and in support of plaintiff’s cross motion, plaintiff annexed, among other things, a so-ordered stipulation which states that if defendant failed to provide discovery responses within 60 days of the date of the so-ordered stipulation, defendant would be precluded from offering any evidence concerning the information which plaintiff had sought and which defendant had failed to provide. While plaintiff’s counsel asserts that defendant failed to comply with the so-ordered stipulation and that plaintiff had sought discovery pertaining to defendant’s defense that plaintiff’s assignor had failed to appear, plaintiff’s cross-moving papers do not contain a copy of the discovery demands served by plaintiff and, in any event, the record does not establish, prima facie, that defendant failed to comply with the terms of the so-ordered stipulation. In light of the foregoing, neither party is entitled to summary judgment, as there is an issue of fact as to whether defendant is barred from interposing its proffered defense due to defendant’s alleged failure to comply with the so-ordered [*2]stipulation.

Accordingly, the judgment is reversed, so much of the order entered May 14, 2012 as granted plaintiff’s cross motion for summary judgment is vacated, and plaintiff’s cross motion for summary judgment is denied.

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