July 21, 2017

Greenway Med. Supply Corp. v Hartford Ins. Co. (2017 NY Slip Op 50960(U))

Headnote

The relevant facts the court considered in the case of Greenway Med. Supply Corp. v Hartford Ins. Co. were that the insurance company had scheduled independent medical examinations (IMEs) for the plaintiff's assignor, but the assignor failed to appear for the scheduled IMEs. The main issue decided in this case was whether the insurance company was liable to pay first-party no-fault benefits to the provider, despite the assignor's failure to appear for the scheduled IMEs. The holding of the court was that an assignor's appearance at an IME is a condition precedent to the insurer's liability on the policy, and since the assignor failed to appear for the scheduled IMEs, the insurance company was not liable to pay the no-fault benefits to the provider. Therefore, the court reversed the order, granted the insurance company's motion for summary judgment, and dismissed the complaint.

Reported in New York Official Reports at Greenway Med. Supply Corp. v Hartford Ins. Co. (2017 NY Slip Op 50960(U))

Greenway Med. Supply Corp. v Hartford Ins. Co. (2017 NY Slip Op 50960(U)) [*1]

Greenway Med. Supply Corp. v Hartford Ins. Co.

2017 NY Slip Op 50960(U) [56 Misc 3d 135(A)]

Decided on July 21, 2017

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This opinion is uncorrected and will not be published in the printed Official Reports.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 July 21, 2017

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

PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2014-1995 K C

Greenway Medical Supply Corp., as Assignee of Sweet Malcolm, Respondent,
against
Hartford Insurance Company, Appellant.

Nightingale Law, P.C. (Michael S. Nightingale, Esq.), for appellant. The Rybak Firm, PLLC (Damin J. Toell, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Ingrid Joseph, J.), entered August 4, 2014. 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 denying defendant’s motion which sought summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations (IMEs).

In support of its motion, defendant established that, before receiving the claims at issue, it had mailed letters scheduling an initial and follow-up IME to the assignor (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Defendant also established that the 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]). Defendant further demonstrated that, upon receipt of the claims, it had timely denied the claims at issue based upon the assignor’s failure to appear for IMEs (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123). An assignor’s appearance at an IME “is a condition precedent to the insurer’s liability on the policy” (Stephen Fogel Psychological, P.C., 35 AD3d at 722).

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.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: July 21, 2017