MRJA Radiology, P.C. v Praetorian Ins. Co.

[*1] MRJA Radiology, P.C. v Praetorian Ins. Co. 2015 NY Slip Op 51381(U) Decided on September 29, 2015 Appellate Term, First 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 29, 2015
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Shulman, J.P., Hunter, Jr., Ling-Cohan, JJ.
570485/15

MRJA Radiology, P.C., a/a/o Jonathan Scarlett, Plaintiff-Respondent, -

against

Praetorian Insurance Company, Defendant-Appellant.

Defendant appeals from an order the Civil Court of the City of New York, Bronx County (Gerald Lebovits, J.), entered July 17, 2014, which, upon reargument, adhered to its prior order entered November 4, 2013 (same court and Judge), denying defendant's motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Gerald Lebovits, J.), entered July 17, 2014, reversed, with $10 costs, motion granted and complaint dismissed. The Clerk is directed to enter judgment accordingly.

Defendant-insurer made a prima facie showing of entitlement to summary judgment dismissing the plaintiff-provider's claim for first-party no-fault benefits by establishing that it timely and properly mailed the notices for independent medical examinations (IMEs) to plaintiff's assignor and his attorney, and that the assignor failed to appear (see American Tr. Ins. Co. v Lucas, 111 AD3d 423 [2013]; American Tr. Ins. Co. v Solorzano, 108 AD3d 449 [2013]). Contrary to Civil Court's determination, defendant submitted competent evidence of the assignor's nonappearance in the form of an affirmation of the scheduled examining physician and a sworn affidavit of an employee of defendant's third-party IME scheduler, setting forth facts sufficient to demonstrate the affiants' personal knowledge of the assignor's repeated failures to appear for the IMEs and the office practices and policies when an assignor fails to appear for a scheduled IME (see American Tr. Ins. Co. v Lucas, 111 AD3d at 424; Harmonic Physical Therapy v Encompass Home and Auto Ins. Co. 47 Misc 3d 146[A], 2015 NY Slip Op 50733[U][App Term, 1st Dept 2015]).

In opposition, plaintiff did not specifically deny the assignor's nonappearance or otherwise raise a triable issue with respect thereto, or as to the mailing or reasonableness of the underlying notices (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [2011], lv denied 17 NY3d 705 [2011]). "Accordingly, when [plaintiff's] assignor[] failed to appear for the requested medical exams, [defendant] had the right to deny all claims retroactively to the date of loss, regardless of whether the denials were timely issued" (American Tr. Ins. Co. v Lucas, 111 AD3d at 424), and even though defendant initially denied [*2]the claims on different grounds (see Unitrin, 82 AD3d at 560).

The order purporting to deny defendant's motion to reargue addressed the merits and, in doing so, in effect, granted defendant's motion and, therefore, the appeal taken therefrom is properly before this Court (see Jackson v Leung, 99 AD3d 489, 490 [2012]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: September 29, 2015