All Star Wellness Med., P.C. v Praetorian Ins. Co.

[*1] All Star Wellness Med., P.C. v Praetorian Ins. Co. 2012 NY Slip Op 51630(U) Decided on August 7, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 7, 2012
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., RIOS and ALIOTTA, JJ
2011-452 K C.

All Star Wellness Medical, P.C. as Assignee of GEMANE NETTLES, Respondent,

against

Praetorian Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Pamela L. Fisher, J.), entered January 18, 2011. The order, insofar as appealed from, denied defendant's cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, without costs, 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, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. The Civil Court denied both motions, finding for all purposes in the action that, among other things, defendant had timely denied the claims at issue, and stating that the only issues for trial were defendant's defenses that plaintiff's assignor had failed to appear for an independent medical examination (IME) and that certain services billed for were not medically necessary. Defendant appeals, arguing that its cross motion for summary judgment dismissing the complaint should have been granted.

In support of its cross motion, defendant submitted an affidavit by the president of Media Referral, Inc., the independent medical review service retained by defendant to schedule IMEs, [*2]which affidavit sufficiently established that the IME requests had been timely mailed in accordance with Media Referral, Inc.'s standard office practices and procedures (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 also submitted an affidavit from the chiropractor who was to perform the IMEs, which was sufficient to establish that plaintiff's assignor had failed to appear for the duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Since an assignor's appearance at an IME "is a condition precedent to the insurer's liability on the policy" (Stephen Fogel Psychological, P.C., 35 AD3d at 722; see also Insurance Department Regulations [11 NYCRR] § 65-1.1), defendant properly denied plaintiff's bills dated August 1, 2008 and August 22, 2008 based upon the assignor's failure to satisfy a condition precedent to coverage and, thus, was not precluded from raising that issue (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2d Dept 2009]).

Defendant also demonstrated that it had properly denied the bill dated July 2, 2008 for lack of medical necessity. Defendant submitted an affirmed peer review report which set forth a factual basis and medical rationale for the peer reviewer's determination that there was a lack of medical necessity for the services rendered (see Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52455[U] [App Term, 2d & 11th Jud Dists 2007]; A. Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]).

As plaintiff failed to raise a triable issue of fact with respect to either of the proffered defenses, the order, insofar as appealed from, is reversed and defendant's cross motion for summary judgment dismissing the complaint is granted.

Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: August 07, 2012