Clinton Place Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2014 NY Slip Op 50963(U))

Decided on May 29, 2014

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Carol Ruth Feinman, J.), entered February 23, 2012, deemed from a judgment of the same court entered March 30, 2012 (see CPLR 5501 [c]). The judgment, entered pursuant to the February 23, 2012 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment dismissing the complaint, awarded plaintiff the principal sum of $5,365.79.

ORDERED that the judgment is reversed, with $30 costs, so much of the order entered February 23, 2012 as granted the branches of plaintiff’s motion seeking summary judgment on the first through thirteenth causes of action and denied the branches of defendant’s cross motion seeking summary judgment dismissing those causes of action is vacated, those branches of plaintiff’s motion are denied, those branches of defendant’s cross motion are granted, and the matter is remitted to the Civil Court for the entry of judgment in favor of defendant dismissing the first through thirteenth causes of action and in favor of plaintiff on the fourteenth cause of action following a calculation of statutory interest and an assessment of attorney’s fees thereon.

In this action by a provider to recover assigned first-party no-fault benefits,

Inasmuch as defendant raises no issue on appeal with respect to plaintiff’s prima facie case, we do not pass upon the propriety of the Civil Court’s determination with respect thereto.

In support of its cross motion for summary judgment dismissing the complaint, defendant submitted an affidavit by an employee of the company which had been retained by defendant to schedule independent medical examinations (IMEs), which affidavit established that the scheduling letters had been timely mailed in accordance with that office’s standard mailing practices and procedures (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]). Defendant also submitted an affidavit by the healthcare professional who was to perform the IMEs, which affidavit established that plaintiff’s assignor had failed to appear for the duly scheduled IMEs (see Stephen Fogel Psychological, P.C. [*2]v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). An affidavit executed by defendant’s litigation examiner sufficiently described defendant’s standard mailing practices and procedures to establish the timely mailing of the denial of claim forms (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16) for the first through thirteenth causes of action.

Since an assignor’s appearance at an IME “is a condition precedent to the insurer’s liability on the policy” (see Stephen Fogel Psychological, P.C., 35 AD3d at 722), the branches of plaintiff’s motion seeking summary judgment on those 13 causes of action should have been denied, and the branches of defendant’s cross motion for summary judgment seeking to dismiss those causes of action should have been granted.

However, defendant did not deny the claim upon which plaintiff’s 14th cause of action was based until October 21, 2010, which was more than two months after plaintiff’s assignor had failed to appear for his second scheduled IME and more than three months after defendant’s receipt of the claim. While defendant alleges that it tolled its 30-day period to pay or deny the claim (see Insurance Department Regulations [11 NYCRR] § 65-3.8 [a]) by timely requesting written verification (see id. at § 65-3.5 [b]), the letters sent by defendant to plaintiff were insufficient to constitute verification requests (see Nyack Hosp. v Encompass Ins. Co., 23 AD3d 535 [2005]; Points of Health Acupuncture, P.C. v Lancer Ins. Co., 28 Misc 3d 133[A], 2010 NY Slip Op 51338[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). Thus, defendant failed to demonstrate that this claim had been timely denied. In view of the foregoing, we do not disturb so much of the order of the Civil Court as granted the branch of plaintiff’s motion seeking summary judgment on the 14th cause of action and denied the branch of defendant’s cross motion seeking summary judgment dismissing that cause of action. Accordingly, the judgment is reversed, so much of the order entered February 23, 2012 as granted the branches of plaintiff’s motion seeking summary judgment on the first through thirteenth causes of action and denied the branches of defendant’s cross motion for summary judgment seeking dismissal of those causes of action is vacated, those branches of plaintiff’s motion are denied, those branches of defendant’s cross motion are granted, and the matter is remitted to the Civil Court for the entry of judgment in favor of defendant dismissing the first through thirteenth causes of action and in favor of plaintiff on the fourteenth cause of action following a calculation of statutory interest and an assessment of attorney’s fees thereon pursuant to Insurance Law § 5106 and the regulations promulgated thereunder.

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