July 21, 2017

Brand Med. Supply, Inc. v Praetorian Ins. Co. (2017 NY Slip Op 50947(U))

Headnote

The court considered the appeal from an order of the Civil Court of the City of New York which denied defendant's motion for summary judgment dismissing the complaint in the case of Brand Medical Supply, Inc. v Praetorian Insurance Company. The main issue decided was whether defendant demonstrated that plaintiff's assignor had failed to comply with a condition precedent to coverage and that defendant had timely denied the claim on that ground, as well as whether the IME scheduling letters had been timely mailed and the plaintiff's assignor had failed to appear for the scheduled IMEs. The holding of the court was that since defendant demonstrated that plaintiff's assignor had failed to comply with a condition precedent to coverage and that defendant had timely denied the claim on that ground, the Civil Court should have granted defendant's motion for summary judgment. Therefore, the order was reversed and defendant's motion for summary judgment dismissing the complaint was granted.

Reported in New York Official Reports at Brand Med. Supply, Inc. v Praetorian Ins. Co. (2017 NY Slip Op 50947(U))

Brand Med. Supply, Inc. v Praetorian Ins. Co. (2017 NY Slip Op 50947(U)) [*1]

Brand Med. Supply, Inc. v Praetorian Ins. Co.

2017 NY Slip Op 50947(U) [56 Misc 3d 133(A)]

Decided on July 21, 2017

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This opinion is uncorrected and will not be published in the printed Official Reports.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 July 21, 2017

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

PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2014-1253 K C

Brand Medical Supply, Inc., as Assignee of Davie Richard, Respondent,
against
Praetorian Insurance Company, Appellant.

Law Offices of Moira Doherty, P.C. ( Janice P. Rosen, Esq.), for appellant. Gary Tsirelman, P.C. (Irena Golodkeyer, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Harriet L. Thompson, J.), entered April 11, 2014. 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., which had been retained by defendant to schedule independent medical examinations (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 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 form, which denied the claim based on plaintiff’s assignor’s nonappearance at the IMEs, had been timely mailed (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123). Since 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) and that defendant had timely denied (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123) the claim on that ground, the Civil Court should have granted defendant’s motion [*2]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 SOLOMON, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: July 21, 2017