September 17, 2015

Healing Art Acupuncture, P.C. v Country Wide Ins. Co. (2015 NY Slip Op 51465(U))

Headnote

The main issues decided in this case were whether the defendant had timely and properly denied the plaintiff's claims based on the failure of the plaintiff's assignor to appear for scheduled independent medical examinations (IMEs). The court considered the evidence submitted by the defendant, which demonstrated that the denial of claim forms and the IME scheduling letters had been timely mailed, and that the assignor had failed to appear for the scheduled IMEs. The court found that the assignor's appearance at a duly scheduled IME is a condition precedent to the insurer's liability on the policy, and therefore granted the defendant's motion for summary judgment dismissing the second through seventh causes of action. However, the court also found that the defendant had failed to establish, as a matter of law, that it had timely denied the claim, so the branch of the defendant's motion seeking summary judgment dismissing the first cause of action was denied. Therefore, the holding of the court was that the order was modified to deny the branch of the defendant's motion seeking summary judgment dismissing the first cause of action.

Reported in New York Official Reports at Healing Art Acupuncture, P.C. v Country Wide Ins. Co. (2015 NY Slip Op 51465(U))

Healing Art Acupuncture, P.C. v Country Wide Ins. Co. (2015 NY Slip Op 51465(U)) [*1]

Healing Art Acupuncture, P.C. v Country Wide Ins. Co.

2015 NY Slip Op 51465(U) [49 Misc 3d 134(A)]

Decided on September 17, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 September 17, 2015

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

PRESENT: PESCE, P.J., WESTON and ELLIOT, JJ.
2013-594 K C

Healing Art Acupuncture, P.C. as Assignee of Jose Reyes, Appellant,
against
Country Wide Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Devin P. Cohen, J.), entered December 21, 2012. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that the branch of defendant’s motion seeking summary judgment dismissing the first cause of action is denied; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that defendant had timely and properly denied plaintiff’s claims at issue based on the failure of plaintiff’s assignor to appear for duly scheduled independent medical examinations (IMEs). The Civil Court granted defendant’s motion.

With respect to the branches of defendant’s motion seeking summary judgment dismissing the second through seventh causes of action, the evidence submitted by defendant was sufficient to demonstrate that the denial of claim forms as well as the IME scheduling letters had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]), and that plaintiff’s assignor had failed to appear for the scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). As an assignor’s appearance at a duly scheduled IME “is a condition precedent to the insurer’s liability on the policy” (id. at 722), the Civil Court properly granted those branches of defendant’s motion.

As to the first cause of action, the record shows that defendant failed to establish, as a matter of law, that it had timely denied the claim. Thus, the branch of defendant’s motion seeking summary judgment dismissing the first cause of action should have been denied.

Plaintiff’s remaining contentions are not properly before this court, as these arguments are being raised for the first time on appeal, and we decline to consider them (see Joe v Upper Room Ministries, Inc., 88 AD3d 963 [2011]; Gulf Ins. Co. v Kanen, 13 AD3d 579 [2004]).

Accordingly, the order is modified by providing that the branch of defendant’s motion seeking summary judgment dismissing the first cause of action is denied.

Pesce, P.J., Weston and Elliot, JJ., concur.

Decision Date: September 17, 2015