Parisien v Citiwide Auto Leasing

[*1] Parisien v Citiwide Auto Leasing 2017 NY Slip Op 50684(U) Decided on May 19, 2017 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 19, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MARTIN M. SOLOMON, J.P., MICHAEL L. PESCE, DAVID ELLIOT, JJ
NO.2015-1767 K C

Jules Francois Parisien, M.D., as Assignee of Quintana Dixon, Respondent,

against

Citiwide Auto Leasing, Appellant.

Miller, Leiby & Associates, P.C. (Melissa M. Wolin, Esq.), for appellant. The Rybak Firm, PLLC (Damin J. Toell, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Theresa M. Ciccotto, J.), entered June 5, 2015. The order, insofar as appealed from and 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 summary judgment dismissing the complaint on the ground that plaintiff's assignor had failed to appear for duly scheduled independent medical examinations (IMEs), and plaintiff cross-moved for summary judgment. As limited by its brief, defendant appeals from so much of an order of the Civil Court as denied defendant's motion.

The Civil Court erroneously held that, because defendant had failed to establish that it had scheduled the examinations at a time that was reasonably convenient for the assignor, there is an issue of fact as to the reasonableness of the IME requests. The no-fault regulations provide that an eligible injured person "shall submit" to IMEs "when, and as often as, the Company may reasonably require" (11 NYCRR 65-1.1), as an assignor's appearance for a duly scheduled IME is a condition precedent to the insurer's liability on the policy. As plaintiff never alleged, let alone demonstrated, that he or his assignor had responded in any way to the IME requests, plaintiff's objections to the reasonableness of the requests should not have been heard (see Westchester County Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 262 AD2d 553 [1999]; Metro Health Prods., Inc. v State Farm Mut. Auto. Ins. Co., 49 Misc 3d 130[A], 2015 NY Slip Op 51459[U] [App Term, 2d, 11th & 13th Jud Dists 2015]).

Accordingly, the order, insofar as appealed from, is reversed and defendant's motion for summary judgment dismissing the complaint is granted.

Solomon, J.P., Pesce and Elliot, JJ., concur.

Decision Date: May 19, 2017