Power Supply, Inc. v Praetorian Ins. Co. (2015 NY Slip Op 50218(U))

Appeal from an order of the District Court of Suffolk County, Third District (C. Stephen Hackeling, J.), dated April 29, 2013. The order denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, without 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 plaintiff’s assignor had failed to appear for duly scheduled examinations under oath (EUOs) and independent medical examinations (IMEs). Plaintiff opposed the motion. By order dated April 29, 2013, the District Court denied the motion.

Defendant demonstrated that it had timely mailed initial EUO and IME requests within 15 business days of receipt of the claim forms at issue (see 11 NYCRR 65-3.5 [b]), and subsequently mailed timely follow-up requests (see 11 NYCRR 65-3.6 [b]), thereby tolling its time to pay or deny the claims. While plaintiff’s assignor failed to appear for chiropractic/acupuncture IMEs on October 5 and October 26, 2010 and orthopedic IMEs on October 7 and November 3, 2010, he also failed to attend EUOs on October 27 and November 22, 2010. As defendant denied the claims within 30 days after the assignor had failed to appear at the November 22, 2010 EUO (see 11 NYCRR 65-3.8 [a]), the claims at issue were timely denied on the ground that plaintiff’s assignor had failed to appear for properly scheduled IMEs and EUOs, regardless of the fact that the IME nonappearances had occurred more than 30 days prior to the issuance of the denial (see Alev Med. Supply, Inc. v New York Cent. Mut. Fire Ins. Co., 38 Misc 3d 143[A], 2013 NY Slip Op 50158[U] [App Term, 2d, 11th & 13th Jud Dists 2013]). Since an assignor’s appearance for any duly scheduled IME or EUO is a condition precedent to the insurer’s liability on the policy (see 11 NYCRR 65-1.1; Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]), defendant was not precluded from raising its defenses. Consequently, defendant established its prima facie entitlement to summary judgment dismissing the complaint. In opposition, plaintiff submitted only an affirmation of counsel, which affirmation failed to raise a triable issue of fact.

Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.

Tolbert, J.P., Marano and Garguilo, JJ., concur.