November 13, 2015

Delta Diagnostic Radiology, P.C. v Country Wide Ins. Co. (2015 NY Slip Op 51672(U))

Headnote

The main issue in the case was whether the insurance company had properly denied the claims on the grounds that the plaintiff's assignor had failed to appear for scheduled IMEs. The court considered the evidence submitted by the defendant to show that the IME scheduling letters and denial of claim forms had been timely mailed, as well as proof that the plaintiff's assignor had not appeared for the scheduled IMEs. The court found that the insurance company had demonstrated that the assignor had failed to comply with a condition precedent to coverage, and as the plaintiff failed to raise a triable issue of fact in opposition, the defendant's cross motion was properly granted. Therefore, the court held that the order denying the plaintiff's motion for summary judgment and granting the defendant's cross motion for summary judgment dismissing the complaint was affirmed.

Reported in New York Official Reports at Delta Diagnostic Radiology, P.C. v Country Wide Ins. Co. (2015 NY Slip Op 51672(U))

Delta Diagnostic Radiology, P.C. v Country Wide Ins. Co. (2015 NY Slip Op 51672(U)) [*1]

Delta Diagnostic Radiology, P.C. v Country Wide Ins. Co.

2015 NY Slip Op 51672(U) [49 Misc 3d 146(A)]

Decided on November 13, 2015

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This opinion is uncorrected and will not be published in the printed Official Reports.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 November 13, 2015

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-903 Q C

Delta Diagnostic Radiology, P.C. as Assignee of CORNELIUS EVANGELIST, Appellant,
against
Country Wide Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Barry A. Schwartz, J.), entered February 25, 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 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 denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

Defendant submitted sufficient proof to show that the independent medical examination (IME) scheduling letters and the denial of claim forms, which denied the claims on the ground that plaintiff’s assignor had failed to appear for duly scheduled IMEs, had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Defendant further demonstrated that plaintiff’s assignor had not appeared for the duly scheduled IMEs and, thus, that plaintiff’s assignor had failed to comply with a condition precedent to coverage (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). As plaintiff failed to raise a triable issue of fact in opposition to defendant’s cross motion, defendant’s cross motion was properly granted.

Accordingly, the order is affirmed.

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

Decision Date: November 13, 2015