Delta Diagnostic Radiology, P.C. v New York Cent. Mut. Fire Ins. Co.

[*1] Delta Diagnostic Radiology, P.C. v New York Cent. Mut. Fire Ins. Co. 2012 NY Slip Op 51953(U) Decided on October 16, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 16, 2012
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON and RIOS, JJ
2010-3199 Q C.

Delta Diagnostic Radiology, P.C. as Assignee of ALEXANDER FITZMICHAEL, Respondent,

against

New York Central Mutual Fire Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Terrence C. O'Connor, J.), entered October 21, 2010. The order, insofar as appealed from as limited by the brief, denied defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, 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, among other things, summary judgment dismissing the complaint. Plaintiff cross-moved for summary judgment. By order entered October 21, 2010, the Civil Court found that the sole issue for trial was whether defendant had established that plaintiff's assignor had failed to appear for scheduled independent medical examinations (IMEs). Defendant appeals, as limited by its brief, from so much of the order as denied its motion for summary judgment.

The appearance of an assignor at an 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]). In support of its motion for summary judgment, defendant proffered, among other things, an affidavit of an employee of Crossland Medical Services, P.C., the entity which had scheduled the IMEs involved herein on behalf of defendant. Defendant also submitted affirmations of its doctors who were to perform the IMEs, which established that plaintiff's assignor had failed to appear for the duly scheduled IMEs (see Stephen Fogel Psychological, P.C., 35 AD3d 720). Inasmuch as plaintiff submitted only an affirmation in opposition from its counsel, plaintiff failed to raise a triable issue of fact.

As plaintiff has not challenged the Civil Court's finding that defendant is otherwise entitled to judgment, defendant's motion for summary judgment dismissing the complaint is granted.

Pesce, P.J., Weston and Rios, JJ., concur. [*2]
Decision Date: October 16, 2012