Village Med. Supply, Inc. v NY Cent. Mut. Fire Ins. Co.

[*1] Village Med. Supply, Inc. v NY Cent. Mut. Fire Ins. Co. 2014 NY Slip Op 50631(U) Decided on April 7, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 7, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ
2011-3267 K C.

Village Medical Supply, Inc. as Assignee of DWAYNE L. GARNER, Respondent,

against

NY Central Mutual Fire Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Reginald A. Boddie, J.), entered October 18, 2011. The order denied defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order 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 appeals from an order of the Civil Court which denied defendant's motion for summary judgment dismissing the complaint. Defendant alleged that it had timely denied the claims at issue based upon plaintiff's assignor's failure to appear for duly scheduled independent medical examinations (IMEs).

Defendant submitted an affidavit by an employee of the company which had been retained by defendant to schedule IMEs, which affidavit established that the IME scheduling letters had been timely mailed in accordance with that office's standard mailing 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 affidavits by the healthcare professionals who were to perform the IMEs, which affidavits established 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]).

Defendant received the claims at issue after plaintiff's assignor had failed to appear for IMEs with two different healthcare professionals. Defendant alleged that it had denied one of these claims within 30 days of its receipt and that it had requested verification on the other claim and then denied that claim within 30 days of its receipt of the requested verification. An affidavit executed by defendant's litigation examiner sufficiently described the standard mailing practices and procedures for the timely mailing of verification requests and denial of claim forms (see St. Vincent's Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16). It is noted that, contrary to plaintiff's argument on appeal, defendant's follow-up verification request complied with Insurance Department Regulations (11 NYCRR) § 65-3.6 (b).

Since an assignor's appearance at an IME "is a condition precedent to the insurer's liability on the policy" (see Stephen Fogel Psychological, P.C., 35 AD3d at 722), the order is reversed and defendant's motion for summary judgment dismissing the complaint is granted. [*2]

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: April 07, 2014