March 16, 2015

Performance Plus Med., P.C. v Utica Mut. Ins. Co. (2015 NY Slip Op 50399(U))

Headnote

The main issue in the case was whether the provider could recover assigned first-party no-fault benefits when the insured failed to appear for duly scheduled examinations under oath and independent medical examinations. The court considered the proof submitted by the defendant showing that the scheduling letters for the examinations were timely mailed, and that the insured failed to appear for any of the scheduled examinations. The court also noted that the failure to send a denial in duplicate was not a fatal error. Since the insured's appearance at any properly scheduled examination was a condition precedent to the insurer's liability, the court granted the defendant's motion for summary judgment dismissing the complaint. The relevant facts considered were the timely mailing of the examination scheduling letters and the insured's failure to appear for the examinations.

Reported in New York Official Reports at Performance Plus Med., P.C. v Utica Mut. Ins. Co. (2015 NY Slip Op 50399(U))

Performance Plus Med., P.C. v Utica Mut. Ins. Co. (2015 NY Slip Op 50399(U)) [*1]

Performance Plus Med., P.C. v Utica Mut. Ins. Co.

2015 NY Slip Op 50399(U) [47 Misc 3d 129(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This opinion is uncorrected and will not be published in the printed Official Reports.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.
2012-2520 K C

Performance Plus Medical, P.C. as Assignee of RONDELL WAGNER, Respondent,
against
Utica Mutual Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Ingrid Joseph, J.), entered July 10, 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 moved for summary judgment dismissing the complaint on the ground that it had timely and properly denied the claims at issue based on plaintiff’s assignor’s failure to appear for duly scheduled examinations under oath (EUOs) and independent medical examinations (IMEs). The Civil Court denied defendant’s motion.

Defendant submitted sufficient proof to show that the EUO and IME scheduling letters 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]); that, where necessary, the time to pay or deny plaintiff’s claim had been tolled by issuance of those letters; that plaintiff’s assignor had failed to appear for any of the properly scheduled EUOs and IMEs; and that the claims had been timely denied on that ground (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16). We note that, contrary to plaintiff’s argument on appeal, the mailing affidavit submitted by defendant alleged that two copies of each denial of claim form were mailed to plaintiff. In any event, the failure to send a denial in duplicate is not, on its own, a fatal error (Mollo Chiropractic, PLLC v American Commerce Ins. Co., 42 Misc 3d 66, 69 [App Term, 2d, 11th & 13th Jud Dists 2013]).

Since an assignor’s appearance at any properly scheduled EUO or IME is a condition precedent to the insurer’s liability on the policy (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]), 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