December 5, 2013

American Tr. Ins. Co. v Leon (2013 NY Slip Op 08124)

Headnote

The relevant facts the court considered in this case were that plaintiff insurance company, American Transit Insurance Company, brought an action seeking a declaration that it had no obligation to pay defendant Stand-Up MRI's claims for failing to appear for independent medical examinations (IMEs). Plaintiff demonstrated its entitlement to judgment by submitting evidence that it mailed the IME notices to the injured defendant's attorney and that the defendant failed to appear for the examinations. The main issue decided was whether the insurance company had an obligation to pay the defendant's claims despite his failure to attend the IMEs. The holding of the court was that the insurance company had no obligation to pay the defendant's claims because attendance at a medical examination is a condition of coverage, and there is no requirement that the claim denial be timely made. Therefore, the motion for summary judgment was granted in favor of the plaintiff.

Reported in New York Official Reports at American Tr. Ins. Co. v Leon (2013 NY Slip Op 08124)

American Tr. Ins. Co. v Leon

2013 NY Slip Op 08124 [112 AD3d 441]

December 5, 2013

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected through Wednesday, January 29, 2014

American Transit Insurance Company, Appellant,
v
Pablo Leon et al., Defendants, and Stand-Up MRI of Bensonhurst, P.C., Respondent.

—[*1] The Law Office of Jason Tenenbaum, P.C., Garden City (Jason Tenenbaum of counsel), for appellant.

Order, Supreme Court, New York County (Ellen M. Coin, J.), entered March 26, 2013, which denied plaintiff’s motion for summary judgment, unanimously reversed, on the law, without costs, the motion granted, and it is declared that plaintiff insurance company has no obligation to pay defendant Stand-Up MRI’s claims.

Plaintiff demonstrated its entitlement to judgment as a matter of law by submitting competent evidence that it mailed the notices scheduling the injured defendant’s independent medical examinations (IMEs) and that he failed to appear for the examinations (see American Tr. Ins. Co. v Lucas, 111 AD3d 423 [1st Dept 2013]; American Tr. Ins. Co. v Solorzano, 108 AD3d 449, 449 [1st Dept 2013]). Defendant provider’s contention that plaintiff failed to prove the mailing of IME notices to the assignor’s attorney, absent competent proof in the record establishing that the assignor was represented by counsel with regard to the subject no-fault claim, is unavailing (see Center for Orthopedic Surgery, LLP v New York Cent. Mut. Fire Ins. Co., 31 Misc 3d 128[A], 2011 NY Slip Op 50473[U] [App Term, 1st Dept 2011]).

Attendance at a medical examination is a condition of coverage. Accordingly, there is no [*2]requirement that the claim denial be timely made (see American Tr. Ins. Co. v Lucas, 111 AD3d 423 [1st Dept 2013]; Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [1st Dept 2011], lv denied 17 NY3d 705 [2011]). Concur—Mazzarelli, J.P., Sweeny, DeGrasse, Freedman and Gische, JJ.