Reported in New York Official Reports at Actual Chiropractic, P.C. v A. Cent. Ins. Co. (2016 NY Slip Op 50397(U))
| Actual Chiropractic, P.C. v A. Cent. Ins. Co. |
| 2016 NY Slip Op 50397(U) [51 Misc 3d 130(A)] |
| Decided on March 23, 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 23, 2016
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and ELLIOT, JJ.
2013-1096 K C
against
A. Central Insurance Company, Appellant.
Appeal from an order of the Civil Court of the City of New York, Kings County (Carolyn E. Wade, J.), entered February 15, 2013. The order denied defendant’s 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, defendant moved to dismiss the complaint on the ground that it had timely and properly denied the claim at issue based upon plaintiff’s assignor’s failure to appear for duly scheduled independent medical examinations (IMEs). The Civil Court denied defendant’s motion.
Defendant’s motion papers failed to establish as a matter of law that the letters scheduling the IMEs of plaintiff’s assignor had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Consequently, defendant failed to demonstrate that the IMEs had been properly scheduled and, thus, that it is entitled to summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to comply with a condition precedent to an insurer’s liability on a policy (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).
Accordingly, the order is affirmed.
Pesce, P.J., Aliotta and Elliot, JJ., concur.
Decision Date: March 23, 2016
Reported in New York Official Reports at Delta Diagnostic Radiology, P.C. v Kemper Ins. Co. (2016 NY Slip Op 50396(U))
| Delta Diagnostic Radiology, P.C. v Kemper Ins. Co. |
| 2016 NY Slip Op 50396(U) [51 Misc 3d 130(A)] |
| Decided on March 23, 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 23, 2016
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and ELLIOT, JJ.
&em;
against
Kemper Insurance Company, Respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Maureen A. Healy, J.), entered April 22, 2013. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.
ORDERED that the order is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.
Contrary to plaintiff’s sole argument on appeal with respect to the merits of defendant’s motion, the affidavits submitted by defendant were sufficient to establish that plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations (IMEs) (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Since an assignor’s appearance at an IME “is a condition precedent to the insurer’s liability on the policy” (id. at 722) and, in opposition to defendant’s motion, plaintiff did not raise a triable issue of fact, the order is affirmed.
Pesce, P.J., Aliotta and Elliot, JJ., concur.
Decision Date: March 23, 2016
Reported in New York Official Reports at PR Med., P.C. v Praetorian Ins. Co. (2016 NY Slip Op 50338(U))
against
Praetorian Insurance Company, Defendant-Respondent.
Plaintiff, as limited by its brief, appeals from so much of an order of the Civil Court of the City of New York, New York County (Gerald Lebovits, J.), entered March 30, 2015, which, upon reargument, adhered to a prior order granting defendant’s motion for summary judgment dismissing the complaint and denying plaintiff’s cross motion for summary judgment on its claims in the amount of $2,005.25.
Per Curiam.
Order (Gerald Lebovits, J.), entered March 30, 2015, insofar as appealed from, reversed, without costs, defendant’s motion for summary judgment denied, complaint reinstated, and plaintiff’s cross motion for summary judgment in the principal amount of $2,005.25 granted.
While the motion court purported to deny plaintiff’s motion for reargument, the merits of the motion were addressed and the court, in effect, granted reargument, even though it ultimately adhered to its original determination (see Jackson v Leung, 99 AD3d 489, 490 [2012]; Matter of State Farm Mut. Auto Ins. Co. v King, 304 AD2d 390 [2003]). Thus, the March 30, 2015 order is appealable.
Turning to the merits, plaintiff established prima facie that its no-fault claims in the amount of $2,005.25 were overdue, since they were not “denied or paid” within the prescribed 30-day period (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins, Co., 25 NY3d 498, 507 [2015]). In opposition, defendant failed to raise a triable issue as to whether it had timely denied the claims (see NYU-Hosp. for Joint Diseases v American Intl. Group, Inc., 89 AD3d 702, 703 [2011]). Contrary to Civil Court’s determination, defendant’s letter stating, in essence, that payment was delayed pending independent medical examinations (IMEs) of plaintiff’s assignor did not serve to toll the 30-day statutory period (id.). Nor has defendant otherwise raised a triable issue as to whether the 30-day period was tolled by verification requests that preceded its receipt of the underlying claims (see Sound Shore Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 106 AD3d 157, 164 [2013]).
Inasmuch as the claims at issue were not timely denied, defendant is precluded from [*2]asserting its defense of lack of medical necessity (see Country-Wide Ins. Co. v Zablozki, 257 AD2d 506 [1999], lv denied 93 NY2d 809 [1999]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur I concur I concur
Decision Date: March 21, 2016
Reported in New York Official Reports at Hu-Nam-Nam v Infinity Ins. Co. (2016 NY Slip Op 50391(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
Infinity Insurance Company, Appellant.
Appeal from an order of the Civil Court of the City of New York, Kings County (Carol Ruth Feinman, J.), entered July 30, 2014. The order denied defendant’s motion for summary judgment dismissing the complaint and granted plaintiff’s cross motion for summary judgment.
ORDERED that the order is reversed, with $30 costs, defendant’s motion for summary judgment dismissing the complaint is granted and plaintiff’s cross motion for summary judgment is denied.
In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that the automobile insurance policy in question had been issued in Florida, and that, based upon a conflict-of-law analysis, Florida law applied, pursuant to which there was a lack of coverage due to the valid rescission of the automobile insurance policy. Plaintiff cross-moved for summary judgment. In an order entered July 30, 2014, the Civil Court denied defendant’s motion and granted plaintiff’s cross motion, based upon defendant’s failure to timely deny plaintiff’s claim.
On appeal, defendant contends that it made a prima facie showing of its defense of rescission of the underlying insurance policy in accordance with Florida law and that its motion for summary judgment dismissing the complaint should have been granted.
The vehicle involved in the accident at issue, which occurred in New York, was being driven by plaintiff’s assignor, who was the policy holder. At the time of the accident, the vehicle was insured by defendant under a Florida automobile insurance policy. After defendant’s investigation into the accident revealed that, at the time the insured applied for motor vehicle insurance, she did not reside at the Florida address listed on the insurance application and that the vehicle was not garaged at that Florida address, defendant rescinded the policy, ab initio, pursuant to Florida Statutes Annotated, title 37, § 627.409, which permits the retroactive cancellation of an insurance contract if there has been a material misrepresentation in an application for insurance.
In order to show that it properly voided a motor vehicle insurance policy ab initio, in accordance with Florida law, an insurer must demonstrate that it gave notice of the rescission to the insured and that it returned or tendered all premiums paid within a reasonable time after the discovery of the grounds for avoiding the policy (see Leonardo v State Farm Fire and Cas. Co., 675 So 2d 176, 179 [Fla Dist Ct App, 4th Dist 1996]; see also United Auto. Ins. Co. v Salgado, 22 So 3d 594, 600-601 [Fla Dist Ct App, 3d Dist 2009]). As defendant demonstrated, through the supporting affidavit of its litigation specialist and accompanying documents, that it had complied with the foregoing requirements, defendant’s prima facie entitlement to summary judgment was established (see W.H.O. Acupuncture, P.C. v Infinity Prop. & Cas. Co., 36 Misc 3d 4 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]). In opposition to defendant’s prima facie showing, plaintiff failed to raise a triable issue of fact as to the validity of the retroactive [*2]rescission of the policy in accordance with Florida law (see Zuckerman v City of New York, 49 NY2d 557 [1980]). Consequently, it was error for the Civil Court to deny defendant’s motion and to grant plaintiff’s cross motion.
Accordingly, the order is reversed, defendant’s motion for summary judgment dismissing the complaint is granted and plaintiff’s cross motion for summary judgment is denied.
Weston, J.P., Pesce and Aliotta, JJ., concur.
Decision Date: March 18, 2016
Reported in New York Official Reports at Friedman v Allstate Ins. Co. (2016 NY Slip Op 50390(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
Allstate Insurance Company, Appellant.
Appeal from a judgment of the Civil Court of the City of New York, Queens County (William A. Viscovich, J.), entered April 30, 2014. The judgment, entered upon a decision of the same court dated December 31, 2012, after a nonjury trial, awarded plaintiff the principal sum of $2,160.
ORDERED that, on the court’s own motion, the notice of appeal from the decision dated December 31, 2012 is deemed a premature notice of appeal from the judgment entered April 30, 2014 (see CPLR 5520 [c]); and it is further,
ORDERED that the judgment is affirmed, with $25 costs.
At a nonjury trial of this action by a provider to recover assigned first-party no-fault benefits for acupuncture services rendered to its assignor, the sole issue was the medical necessity of acupuncture treatments rendered by plaintiff to its assignor during the spring of 2008. Defendant’s expert medical witness, Dr. Chiu, who had performed an independent medical examination (IME) of plaintiff’s assignor on July 17, 2007, testified that, at the time of the IME, the assignor’s injuries had resolved and that there was no further need for acupuncture treatment. Dr. Friedman, who had commenced treatment of the assignor in June 2007, testified that he was of the opinion that the assignor’s injuries had not resolved at the time of the IME and that further acupuncture treatment was necessary. He had examined and treated the assignor after the IME had been conducted and had concluded that the assignor’s condition was sometimes better and sometimes worse, but that the assignor still often suffered from pain arising from his injuries. It was his opinion that the assignor’s injuries were caused by the accident, but that the injuries were exacerbated by the nature of his job as a parking valet, which “impeded . . . the progress of the treatment.” In a decision after trial, from which defendant appeals, the Civil Court concluded that the acupuncture services in question were medically necessary. A judgment in favor of plaintiff was subsequently entered, from which we deem the appeal to have been taken (see CPLR 5520 [c]).
It is undisputed that defendant denied plaintiff’s claims solely on the basis of Dr. Chui’s IME, which concluded that the services rendered were not medically necessary, and not on the basis of the assignor’s possible eligibility for workers’ compensation benefits, which is a defense subject to preclusion (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045, 1046 [2009]). Since defendant did not deny plaintiff’s claims based upon the assignor’s possible eligibility for workers’ compensation benefits, defendant is precluded from raising that defense.
With respect to defendant’s contention that it demonstrated at trial that the acupuncture services in question lacked medical necessity, we find that, after defendant made its showing that the services in question were not medically necessary, plaintiff met its burden of demonstrating, by a preponderance of the credible evidence, that the services at issue were, in fact, medically necessary (see Park Slope Med. & Surgical Supply, Inc. v Travelers Ins. Co., 37 Misc 3d 19, 22 [*2][App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]). There is, therefore, no basis to disturb the Civil Court’s determination in favor of plaintiff.
Accordingly, the judgment is affirmed.
Weston, J.P., Pesce and Aliotta, JJ., concur.
Decision Date: March 18, 2016
Reported in New York Official Reports at Natural Therapy Acupuncture, P.C. v American Tr. Ins. Co. (2016 NY Slip Op 50389(U))
| Natural Therapy Acupuncture, P.C. v American Tr. Ins. Co. |
| 2016 NY Slip Op 50389(U) [51 Misc 3d 129(A)] |
| Decided on March 18, 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 18, 2016
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : WESTON, J.P., PESCE and ALIOTTA, JJ.
2014-769 Q C
against
American Transit Ins. Co., Respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (William A. Viscovich, J.), entered March 14, 2014. 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 defendant had timely and properly paid plaintiff’s claims in accordance with the workers’ compensation fee schedule. Plaintiff appeals from an order of the Civil Court denying plaintiff’s motion and granting defendant’s cross motion.
Contrary to plaintiff’s arguments on appeal, the affidavit of defendant’s no-fault examiner, and the exhibits annexed in support of defendant’s cross motion, established that defendant had fully paid plaintiff for the services at issue in accordance with the workers’ compensation fee schedule (see Great Wall Acupuncture, P.C. v Geico Ins. Co., 26 Misc 3d 23 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]). Plaintiff failed to raise a triable issue of fact in opposition to defendant’s cross motion. Consequently, the Civil Court properly granted defendant’s cross motion and denied plaintiff’s motion.
Accordingly, the order is affirmed.
Weston, J.P., Pesce and Aliotta, JJ., concur.
Decision Date: March 18, 2016
Reported in New York Official Reports at Alleviation Med. Servs., P.C. v A Cent. Ins. Co. (2016 NY Slip Op 50383(U))
| Alleviation Med. Servs., P.C. v A. Cent. Ins. Co. |
| 2016 NY Slip Op 50383(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. |
| As corrected in part through April 8, 2016; it 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.
&em;
against
A. Central Insurance Company, Respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Pamela L. Fisher, J.), entered February 22, 2013. The order granted 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 denied.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint.
Plaintiff correctly argues on appeal that defendant’s moving papers failed to establish as a matter of law that the letters scheduling the independent medical examinations (IMEs) of plaintiff’s assignor had been timely and properly mailed to the assignor (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Consequently, defendant failed to demonstrate that the IMEs had been properly scheduled and, thus, that it is entitled to summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to comply with a condition precedent to an insurer’s liability on a policy (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Although defendant attempted, in its reply papers, to cure the defect, the affirmation of defendant’s counsel was insufficient to do so since counsel lacked personal knowledge. In any event, defendant could not establish its entitlement to judgment by submitting, as part of its reply papers, sufficient evidence in admissible form to cure defects in its moving papers (see North Acupuncture, P.C. v State Farm Ins. Co., 14 Misc 3d 130[A], 2006 NY Slip Op 52523[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2006]).
Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is denied.
Pesce, P.J., Aliotta and Elliot, JJ., concur.
Decision Date: March 17, 2016
Reported in New York Official Reports at Alleviation Med. Servs., P.C. v Truck Ins. Exch. (2016 NY Slip Op 50382(U))
| Alleviation Med. Servs., P.C. v Truck Ins. Exch. |
| 2016 NY Slip Op 50382(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.
2013-1372 Q C
against
Truck Insurance Exchange, Respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Jodi Orlow, J.), entered May 21, 2013. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.
ORDERED that the order is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.
In support of its motion, defendant sufficiently established the timely mailing (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) of the denial of claim form at issue, which denied the claim on the ground of lack of medical necessity. Defendant further submitted an affirmed peer review which set forth a factual basis and medical rationale for the peer reviewer’s determination that there was a lack of medical necessity for the services at issue. In opposition to the motion, plaintiff submitted an affidavit from a doctor which failed to meaningfully refer to, let alone sufficiently rebut, the conclusions set forth in the peer review report (see Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App Term, 2nd Dept, 2d, 11th & 13th Jud Dists 2009]). Consequently, defendant established its entitlement to summary judgment dismissing the complaint.
Accordingly, the order is affirmed.
Pesce, P.J., Aliotta and Elliot, JJ., concur.
Decision Date: March 17, 2016
Reported in New York Official Reports at Vladenn Med. Supply Corp. v Travelers Ins. Co. (2016 NY Slip Op 50381(U))
| Vladenn Med. Supply Corp. v Travelers Ins. Co. |
| 2016 NY Slip Op 50381(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.
2013-1371 Q C
against
Travelers Insurance Company, Respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Jodi Orlow, J.), entered May 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 modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied; as so modified, the order is affirmed, without costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which denied plaintiff’s motion for summary judgment, and granted defendant’s cross motion for summary judgment dismissing the complaint as premature because plaintiff had failed to provide requested verification.
In support of its cross motion, defendant established that it had timely mailed its verification request and follow-up verification request (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Defendant also demonstrated prima facie that it had not received the requested verification and, thus, that plaintiff’s action is premature (see 11 NYCRR 65-3.8 [a]; Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]). However, in opposition to the cross motion, plaintiff submitted an affidavit from plaintiff’s employee, which affidavit was sufficient to give rise to a presumption that the requested verification had been mailed to, and received by, defendant (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). In light of the foregoing, there is a triable issue of fact as to whether this action is premature (see Healing Health Prods., Inc. v New York Cent. Mut. Fire Ins. Co., 44 Misc 3d 59 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]).
Accordingly, the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied.
Pesce, P.J., Aliotta and Elliot, JJ., concur.
Decision Date: March 17, 2016
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) [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
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