September 17, 2015

New Way Med. Supply Corp. v Company (2015 NY Slip Op 51461(U))

Headnote

The relevant facts in the case include an action by a provider to recover assigned first-party no-fault benefits, in which the defendant appealed from an order that granted the plaintiff's motion for summary judgment and denied the defendant's cross motion for summary judgment dismissing the complaint. The defendant submitted proof that independent medical examination (IME) scheduling letters and denial of claim forms, which denied the claims on the ground that the plaintiff's assignor had failed to appear for duly scheduled IMEs, had been timely mailed. The defendant also demonstrated that the plaintiff's assignor had not appeared for the duly scheduled IMEs, indicating a failure to comply with a condition precedent to coverage. As a result, the court reversed the judgment, vacated the order, denied the plaintiff's motion for summary judgment, and granted the defendant's cross motion for summary judgment dismissing the complaint. The main issue decided in this case was whether the plaintiff had complied with the conditions precedent to coverage, specifically in relation to appearing for scheduled IMEs, and whether there was sufficient proof to establish this non-compliance. The holding of the case was that the plaintiff had not raised a triable issue of fact, and therefore the defendant's cross motion for summary judgment dismissing the complaint was granted.

Reported in New York Official Reports at New Way Med. Supply Corp. v Company (2015 NY Slip Op 51461(U))

New Way Med. Supply Corp. v Company (2015 NY Slip Op 51461(U)) [*1]

New Way Med. Supply Corp. v Country Wide Ins. Co.

2015 NY Slip Op 51461(U) [49 Misc 3d 133(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This opinion is uncorrected and will not be published in the printed Official Reports.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., ALIOTTA and SOLOMON, JJ.
2013-496 Q C

New Way Medical Supply Corp. as Assignee of Darrel Drechatte, Respondent,
against
Country Wide Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered January 31, 2013, deemed from a judgment of the same court entered February 15, 2013 (see CPLR 5501 [c]). The judgment, entered pursuant to the January 13, 2013 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 $1,991.99.

ORDERED that the judgment is reversed, with $30 costs, the order entered January 13, 2013 is vacated, plaintiff’s motion for summary judgment is denied and defendant’s cross 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 entered January 13, 2013, which granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

Defendant submitted sufficient proof to show that the independent medical examination (IME) scheduling letters and the denial of claim forms, which denied the claims on the ground that plaintiff’s assignor had failed to appear for duly scheduled IMEs, 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 further demonstrated that plaintiff’s assignor had not appeared for the duly scheduled IMEs and, thus, that plaintiff’s assignor had failed to comply with a condition precedent to coverage (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). As plaintiff failed to raise a triable issue of fact, plaintiff’s motion should have been denied and defendant’s cross motion should have been granted.

Accordingly, the judgment is reversed, the order entered January 13, 2013 is vacated, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted.

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

Decision Date: September 17, 2015