Bay Ls Med. Supplies, Inc. v Mvaic

[*1] Bay Ls Med. Supplies, Inc. v Mvaic 2014 NY Slip Op 50417(U) Decided on March 11, 2014 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 11, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ
2012-832 Q C.

BAY LS Medical Supplies, Inc. as Assignee of KRISMA DEJOIE, Respondent,

against

MVAIC, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (William A. Viscovich, J.), entered January 26, 2012, deemed from a judgment of the same court entered March 15, 2012 (see CPLR 5501 [c]). The judgment, entered pursuant to the January 26, 2012 order granting plaintiff's motion for summary judgment and denying defendant's cross motion for summary judgment dismissing the complaint, awarded plaintiff the principal sum of $547.50.

ORDERED that the judgment is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) appeals from an order of the Civil Court which granted plaintiff's motion for summary judgment and denied defendant's cross motion for summary judgment dismissing the complaint. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

Since defendant raises no issue on appeal with regard to plaintiff's establishment of its prima facie entitlement to summary judgment, we do not pass upon the propriety of the Civil Court's implicit determination with respect thereto (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]).

The record establishes that MVAIC's letters scheduling independent medical examinations (IMEs) of plaintiff's assignor were mailed more than 30 days after MVAIC had received the claim at issue. As a result, defendant is precluded from raising its proffered defense that plaintiff's assignor's failure to appear for duly scheduled IMEs constituted a failure to comply with a condition precedent to coverage (see Essential Acupuncture Servs., P.C. v Ameriprise Auto & Home Ins., 38 Misc 3d 130[A], 2012 NY Slip Op 52404[U] [App Term, 2d, 11th & 13th Jud Dists 2012]). In any event, the denial attached to MVAIC's cross motion was a general denial, not a specific denial, as it did not set forth an amount of the bill, the date of the bill, or the supplies which were allegedly provided to plaintiff's assignor. Thus, MVAIC failed to establish that it had issued a denial in response to the bill at issue (see Huntington Hosp. v New York Cent. Mut. Fire Ins. Co., 37 Misc 3d 141[A], 2012 NY Slip Op 52274[U] [App Term, 9th & 10th Jud Dists 2012]). Consequently, even if defendant had timely scheduled the IMEs, defendant failed to establish that it is not precluded from proffering its defense that plaintiff's assignor failed to comply with a condition precedent to coverage (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2009]).

Accordingly, the judgment is affirmed.

Pesce, P.J., Aliotta and Solomon, JJ., concur. [*2]
Decision Date: March 11, 2014