Perfect Point Acupuncture, P.C. v Auto One Ins. Co.

[*1] Perfect Point Acupuncture, P.C. v Auto One Ins. Co. 2012 NY Slip Op 51486(U) Decided on August 6, 2012 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 6, 2012
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., RIOS and ALIOTTA, JJ
2010-2016 K C.

Perfect Point Acupuncture, P.C. as Assignee of JOCELYNE LOUIS, Appellant,

against

Auto One Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Peter Paul Sweeney, J.), entered January 14, 2010. The order denied plaintiff's motion for summary judgment and granted defendant's cross motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that defendant's cross motion for summary judgment dismissing the complaint 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, plaintiff appeals from an order of the Civil Court which denied plaintiff's motion for summary judgment and granted defendant's cross motion for summary judgment dismissing the complaint.

Defendant's proffered defense to this action is that it timely denied the claims based upon plaintiff's assignor's failure to appear for independent medical examinations (IMEs). However, defendant failed to establish that the letters scheduling the IMEs had been mailed to plaintiff's assignor (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 [*2]& 11th Jud Dists 2007]). Thus, defendant did not demonstrate that plaintiff's assignor had failed to comply with a condition precedent to the insurer's liability on the policy (see Insurance Department Regulations [11 NYCRR] § 65-1.1; Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Consequently, defendant's cross motion for summary judgment dismissing the complaint should not have been granted.

Plaintiff's motion for summary judgment was properly denied (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]).

Accordingly, the order is modified by providing that defendant's cross motion for summary judgment dismissing the complaint is denied. In view of the foregoing, we need not reach plaintiff's remaining contentions.

Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: August 06, 2012