May 18, 2015

New Way Med. Supply Corp. v Praetorian Ins. Co. (2015 NY Slip Op 50780(U))

Headnote

The relevant facts the court considered were the failure of the plaintiff's assignor to appear for scheduled chiropractic independent medical examinations (IMEs) and the timely denial of the claim by the defendant insurance company. The main issues decided were whether the scheduling letters for the IMEs had been timely mailed and whether the plaintiff's assignor had failed to comply with a condition precedent to coverage. The holding of the court was that the defendant insurance company had established that the IME scheduling letters had been timely mailed and that the plaintiff's assignor had failed to appear for the scheduled IMEs, entitling the defendant to summary judgment dismissing the complaint. The court also declined to consider the plaintiff's remaining contentions and affirmed the order.

Reported in New York Official Reports at New Way Med. Supply Corp. v Praetorian Ins. Co. (2015 NY Slip Op 50780(U))

New Way Med. Supply Corp. v Praetorian Ins. Co. (2015 NY Slip Op 50780(U)) [*1]

New Way Med. Supply Corp. v Praetorian Ins. Co.

2015 NY Slip Op 50780(U) [47 Misc 3d 150(A)]

Decided on May 18, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 May 18, 2015

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-4 Q C

New Way Medical Supply Corp. as Assignee of VALDINE SANCE, Appellant,
against
Praetorian Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered November 20, 2012. 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.

Contrary to plaintiff’s contention, defendant established that the chiropractic independent medical examination (IME) scheduling letters 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]). Since defendant demonstrated that plaintiff’s assignor had failed to comply with a condition precedent to coverage (id. at 722) and that defendant had timely denied (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16) the claims on that ground, defendant was entitled to summary judgment dismissing the complaint.

In light of the foregoing, we need not pass upon plaintiff’s contention that defendant failed to establish that plaintiff’s assignor had failed to appear for duly scheduled orthopedic IMEs or examinations under oath. Plaintiff’s remaining contentions either lack merit, or are not properly before this court as they are being raised for the first time on appeal, and we decline to consider them (see Joe v Upper Room Ministries, Inc., 88 AD3d 963 [2011]; Gulf Ins. Co. v Kanen, 13 AD3d 579 [2004]).

Accordingly, the order is affirmed.

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

Decision Date: May 18, 2015