Focus Chiropractic, P.C. v Global Liberty Ins. Co. of N.Y. (2020 NY Slip Op 51006(U))

Law Office of Jason Tenenbaum, P.C. (Shaaker Bhuiyan of counsel), for appellant. Gary Tsirelman, P.C. (Gary Tsirelman, Esq.), for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Lorna J. McAllister, J.), entered November 2, 2018. The order, insofar as appealed from as limited by the brief, denied the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the claim which was denied on the ground that plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the claim which was denied on the ground that plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the grounds that plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations (IMEs) and that the amounts plaintiff sought to recover upon the remaining claims exceeded the amount permitted by the workers’ compensation fee schedule. In opposition to defendant’s motion, plaintiff only submitted an affirmation from plaintiff’s counsel. As limited by its brief, defendant appeals from so much of an order of the Civil Court entered November 2, 2018 as denied the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the claim which was denied on the ground that plaintiff’s assignor had failed to appear for duly scheduled IMEs.

The affidavit submitted by defendant in support of its motion sufficiently established that the IME scheduling letters had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) to plaintiff’s assignor, thereby duly scheduling the IMEs. Defendant also established that the assignor had failed to appear for the scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Thus, defendant demonstrated that plaintiff had failed to comply with a condition [*2]precedent to coverage (id. at 722). Defendant further established that when the claim at issue was subsequently received, it was timely denied (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123) on that ground. As plaintiff failed to raise a triable issue of fact, the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the claim which was denied on the ground that plaintiff’s assignor had failed to appear for duly scheduled IMEs should have been granted.

Accordingly, the order, insofar as appealed from, is reversed and the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the claim which was denied on the ground that plaintiff’s assignor had failed to appear for duly scheduled IMEs is granted.

ALIOTTA, P.J., ELLIOT and TOUSSAINT, JJ., concur.