March 16, 2015

Cortland Med. Supply, P.C. v Praetorian Ins. Co. (2015 NY Slip Op 50394(U))

Headnote

The relevant facts considered by the court were that the plaintiff, Cortland Medical Supply, P.C., was seeking to recover assigned first-party no-fault benefits from the defendant, Praetorian Ins. Co. The defendant had moved for summary judgment to dismiss the complaint, arguing that the plaintiff's assignor had failed to appear for scheduled independent medical examinations (IMEs), which is a condition precedent to the insurer's liability under the policy. The main issue decided by the court was whether the defendant had sufficiently established that the IME requests had been timely mailed and that the assignor had failed to appear for the scheduled IMEs. The holding of the case was that the court reversed the order and granted the defendant's motion for summary judgment dismissing the complaint, ruling that the defendant had indeed established the timely mailing of IME requests and the assignor's failure to appear for the IMEs, which justified the denial of the claims.

Reported in New York Official Reports at Cortland Med. Supply, P.C. v Praetorian Ins. Co. (2015 NY Slip Op 50394(U))

Cortland Med. Supply, P.C. v Praetorian Ins. Co. (2015 NY Slip Op 50394(U)) [*1]

Cortland Med. Supply, P.C. v Praetorian Ins. Co.

2015 NY Slip Op 50394(U) [47 Misc 3d 128(A)]

Decided on March 16, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 March 16, 2015

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2012-2134 K C

Cortland Medical Supply, P.C. as Assignee of RYAN KNIGHTS, Respondent,
against
Praetorian Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Ingrid Joseph, J.), entered July 26, 2012. The order denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court which denied defendant’s motion for summary judgment dismissing the complaint.

In support of its motion, defendant submitted an affidavit by the president of Media Referral, Inc., which had been retained by defendant to schedule independent medical examinations (IMEs), which affidavit sufficiently established that the IME requests 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]). Defendant also submitted, among other things, affirmations and an affidavit from the medical providers who were to perform the IMEs, which sufficiently established that plaintiff’s assignor had failed to appear for those duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). In addition, an affidavit executed by defendant’s claims examiner demonstrated that the denial of claim forms, which, insofar as is relevant to this appeal, denied the claims based on plaintiff’s assignor’s nonappearance at the IMEs, had been timely mailed (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16). Since appearance at an IME is a condition precedent to an insurer’s liability on a policy (see 11 NYCRR 65-1.1; Stephen Fogel Psychological, P.C., 35 AD3d 720), the Civil Court should have granted defendant’s motion for summary judgment.

Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: March 16, 2015