August 5, 2015

Great Health Care Chiropractic, P.C. v Praetorian Ins. Co. (2015 NY Slip Op 51224(U))

Headnote

The main issue in the case was whether the provider could recover assigned first-party no-fault benefits, as the defendant had timely and properly denied the claim based on the assignor's failure to appear for scheduled independent medical examinations (IMEs). The court considered evidence submitted by the defendant that demonstrated the denial of the claim form had been timely mailed and that the assignor had failed to appear for the IMEs, which the court found to be sufficient. Since the assignor's appearance at the scheduled IMEs was a condition precedent to the insurer's liability on the policy, the Civil Court properly denied the plaintiff's motion for summary judgment and granted the defendant's cross motion. As a result, the court affirmed the order of the Civil Court.

Reported in New York Official Reports at Great Health Care Chiropractic, P.C. v Praetorian Ins. Co. (2015 NY Slip Op 51224(U))

Great Health Care Chiropractic, P.C. v Praetorian Ins. Co. (2015 NY Slip Op 51224(U)) [*1]

Great Health Care Chiropractic, P.C. v Praetorian Ins. Co.

2015 NY Slip Op 51224(U) [48 Misc 3d 139(A)]

Decided on August 5, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 August 5, 2015

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-741 Q C

Great Health Care Chiropractic, P.C. as Assignee of BRIAN CUMMINGS, Appellant,
against
Praetorian Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Barry A. Schwartz, J.), entered February 28, 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 moved for summary judgment, and defendant cross-moved for summary judgment dismissing 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 plaintiff’s motion and granted defendant’s cross motion.

Contrary to plaintiff’s arguments on appeal, the evidence submitted by defendant in support of its cross motion was sufficient to demonstrate that the denial of claim form had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]) and that plaintiff’s 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]). As an assignor’s appearance at a duly scheduled IME “is a condition precedent to the insurer’s liability on the policy” (id. at 722), the Civil Court properly denied plaintiff’s motion and granted defendant’s cross motion. In light of the foregoing, we do not reach plaintiff’s remaining contentions.

Accordingly, the order is affirmed.

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

Decision Date: August 05, 2015