August 6, 2015

Hammond v Unitrin Advantage Ins. Co. (2015 NY Slip Op 51241(U))

Headnote

The main issues in this case were whether the defendant was entitled to summary judgment and whether the provider's assignor had failed to appear for scheduled independent medical examinations (IMEs). The defendant appealed from an order of the Civil Court which denied defendant's motion for summary judgment dismissing the complaint. In support of its motion, the defendant submitted evidence that the IME scheduling letters had been timely mailed and that the assignor had failed to appear for the scheduled IMEs. The Court held that since appearance at a duly scheduled IME is a condition precedent to an insurer's liability on a policy, the Civil Court should have granted the defendant's motion for summary judgment. Therefore, the Court reversed the order and granted defendant's motion for summary judgment dismissing the complaint.

Reported in New York Official Reports at Hammond v Unitrin Advantage Ins. Co. (2015 NY Slip Op 51241(U))

Hammond v Unitrin Advantage Ins. Co. (2015 NY Slip Op 51241(U)) [*1]

Hammond v Unitrin Advantage Ins. Co.

2015 NY Slip Op 51241(U) [48 Misc 3d 141(A)]

Decided on August 6, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 August 6, 2015

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-823 K C

William H. Hammond, Jr., D.C., PAINEASE MASSAGE THERAPY, P.C., NARCISSE VERSAILLES, M.D., and EXCELLENT CARE PHYSICAL THERAPY as Assignees of SHAMMEN PIERRE, Respondents,
against
Unitrin Advantage Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Reginald A. Boddie, J.), entered April 27, 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 providers 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 an employee of the company which had been retained by defendant to schedule independent medical examinations (IMEs), which affidavit established that the IME 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 plaintiffs’ 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]). In addition, an affidavit by defendant’s claims representative, as well as an affidavit of service with respect to each denial of claim form, demonstrated that the denial of claim forms, which denied the claims based on plaintiffs’ 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 a duly scheduled 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: August 06, 2015