October 18, 2019

Tyorkin v Global Liberty Ins. (2019 NY Slip Op 51689(U))

Headnote

The court considered the fact that the defendant had submitted an affidavit by a supervisor employed by Omnimed Evaluation Services, which had been retained by defendant to schedule independent medical examinations (IMEs) and that the assignor had failed to appear for the duly scheduled IMEs. The main issue decided was whether the defendant was entitled to summary judgment dismissing the complaint on the ground that the plaintiff's assignor had failed to appear for duly scheduled IMEs. The holding of the case was that the defendant was entitled to summary judgment dismissing the complaint because they had timely denied the claims and the plaintiff had failed to raise a triable issue of fact in opposition to the defendant's cross motion. The court reversed the order denying the defendant's cross motion for summary judgment and granted the defendant's cross motion for summary judgment dismissing the complaint.

Reported in New York Official Reports at Tyorkin v Global Liberty Ins. (2019 NY Slip Op 51689(U))

Tyorkin v Global Liberty Ins. (2019 NY Slip Op 51689(U)) [*1]

Tyorkin v Global Liberty Ins.

2019 NY Slip Op 51689(U) [65 Misc 3d 138(A)]

Decided on October 18, 2019

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This opinion is uncorrected and will not be published in the printed Official Reports.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 October 18, 2019

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

PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, BERNICE D. SIEGAL, JJ
2017-2147 K C

Maxim Tyorkin, M.D., as Assignee of Whitted Alonzo, Respondent,
against
Global Liberty Insurance, Appellant.

Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum of counsel), for appellant. Law Office of Emilia I. Rutigliano, P.C., for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Odessa Kennedy, J.), entered August 23, 2017. The order, insofar as appealed from, denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant’s cross 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 so much of an order of the Civil Court as denied defendant’s cross motion which had sought summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations (IMEs).

In support of its cross motion, defendant submitted an affidavit by a supervisor employed by Omnimed Evaluation Services, which had been retained by defendant to schedule IMEs, which affidavit 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]). Defendant also established that the assignor had failed to appear for the duly 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 precedent to [*2]coverage (id. at 722). As defendant’s cross motion further established that defendant had timely denied (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123) the claims on that ground, and plaintiff failed to raise a triable issue of fact in opposition to defendant’s cross motion, defendant was entitled to summary judgment dismissing the complaint.

Accordingly, the order, insofar as appealed from, is reversed and defendant’s cross motion for summary judgment dismissing the complaint is granted.

PESCE, P.J., ALIOTTA and SIEGAL, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: October 18, 2019